Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Highway Administration), Agency.

Equal Employment Opportunity Commission

May 13, 2015

01-2013-3067-0500 (E.E.O.C. May. 13, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Anthony Foxx,
Secretary,
Department of Transportation
(Federal Highway Administration),
Agency.

Appeal No. 0120133067

Hearing No. 570-2013-00022X

Agency No. 201224396NHTSA02

DECISION
On August 19, 2013, Complainant filed an appeal from the Agency’s July 11, 2013 final order
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Systems Support
Specialist, GS-12, in the National Highway Traffic Safety Administration (NHTSA)’s Office of
Chief Information Officer (OCIO) which is located in Washington, DC. On March 19, 2012,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (Black), sex (male), and in reprisal for prior protected EEO activity when on
November 4, 2011, he was issued an Official Letter of Reprimand.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
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When Complainant did not object, the AJ assigned to the case granted the Agency’s June 4,
2013, motion for summary judgment. The Agency subsequently issued a final order adopting
the AJ’s finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a summary judgment decision when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp.

, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect
the outcome of the case.
The AJ found that the Agency articulated legitimate nondiscriminatory reasons for issuing
Complainant the Letter of Reprimand. Record evidence shows that Complainant’s second-line
supervisor (S2) issued the official reprimand to Complainant based upon the repeated
complaints about his poor customer service, which is a critical element of his performance
plan. The record shows that even though Complainant was verbally counseled by his
supervisor, a pattern of unacceptable conduct continued with a series of complaints filed by
both members of the Agency's management team and other NHTSA employees.

The AJ granted the Agency’s summary judgment motion because Complainant failed to present
evidence to dispute that there were multiple complaints about his poor customer service, and he
did not proffer evidence showing that the decision to reprimand him was motivated by his race,
gender or prior EEO activity. It is Complainant’s burden to establish the existence of an
unlawful motivation on the part of the responding management officials by a preponderance of
the evidence, and more is required to meet that burden than merely expressing one’s belief.
We agree with the AJ that the record is devoid of discriminatory or retaliatory animus on the
part of any management official.

CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, we
AFFIRM the Agency’s final action which adopts the AJ’s summary judgment decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

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1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or

2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark,
the request to reconsider shall be deemed timely filed if it is received by mail within five days
of the expiration of the applicable filing period. See

29 C.F.R. § 1614.604. The request or
opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See

29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION

(S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
May 13, 2015