Danial B.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Apr 26, 2019

0120180307 (E.E.O.C. Apr. 26, 2019)

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

Danial B.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120180307

Hearing No. 510-2014-00056X

Agency No. 201123864FAA06

DECISION

On October 25, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 20, 2017, final decision 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Aviation Safety
Inspector, FG-1825-14/6, assigned to the Flight Standards International Field Office (IFO) at the
American Embassy in Singapore.

On May 20, 2011, Complainant filed an EEO complaint alleging that the Agency subjected him to
a hostile work environment on the bases of religion (Jewish) and in reprisal for prior protected
EEO activity since September 2009, which included the following events: (1) from January
through March 2011, he was investigated by the Accountability Board concerning a complaint

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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raised against him by a coworker. Due to the nature of the complaint against him, he was informed
that he would not be able to travel or have contact with his assignments until the matter was
resolved, his computer was confiscated, his email capability was disabled, his assignments were
reassigned to other inspectors, he was provided with a temporary computer and given alternate
duties; (2) in April 2011, he was given a memorandum of proposed disciplinary action; and (3) on
May 3, 2011, he had a performance discussion with his supervisor in which he was given negative
feedback concerning his letters of correspondence, his interpretation of the regulations, and his
timeliness in submitting reports.

After 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 EEOC Administrative Judge.
Complainant timely requested a hearing but subsequently withdrew his request. Consequently,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

FACTUAL BACKGROUND

Accountability Board Complaint and Investigation

Complainant alleged that in September 2009, his former supervisor, AM, told him of a complaint
raised against him to the Agency’s Accountability Board (FAB). He was asked whether he had
gone shopping when completing a work assignment in Kuala Lumpur, Malaysia, and he responded
that he did not go shopping at all. AM also asked him what he did in the evenings when he was
working in Jakarta, Indonesia, and Complainant responded that he went to a few dance clubs alone.
He opined someone was trying to fabricate something and wanted him to invent a story that
supported the fabrication. Complainant stated that AM made a series of threats, including sending
him home on the next plane and stating the ramifications of his family hearing something. He
further asserted that he was removed from an assigned repair station. Complainant stated that AM
retired in November 2009.

In March 2010, Complainant’s new supervisor (S1) informed him that a FAB complaint had been
filed against him which included a claim by a former employee (CW1) regarding his refusal to
have dinner with an “Accountable Manager” on an inspection trip in April or May 2009 to the
repair station in Jakarta, Indonesia. Complainant asserted that he and S1 had discussions
concerning the matter until September 2010, when S1 informed him that the complaint had “timed
out” because it was handled poorly.

Complainant further stated that another FAB complaint had been raised concerning two incidents
that occurred during his inspection visit to a repair station in Hong Kong in January 2011, and that
two officials from the FAB interviewed him in February 2011. Complainant asserted that on or
around March 24, 2011, S1 also conducted an interview with him regarding this FAB complaint.
Complainant further claimed he was informed that he could not travel or have contact with any of
his work assignments until the resolution of the investigation, which was conducted from February
2011 through June 2011.
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Complainant further asserted that his certificate management responsibilities were removed, he
was assigned alternate duties, his computer was confiscated, his assignments were reassigned to
his peers, and he was provided a temporary computer. He stated that when his computer was first
confiscated, he was not given a reason. Complainant believed that after a month or so, he had
computer access, but only for the audit work he was performing. He alleged that he did not have
internet access, and he could not do his time and attendance and had to use someone else’s
computer for that. He claimed that “[S1] had no plan of action; he did not suggest anything. I
found my own answers.” Complainant also stated that he could not advise his repair stations
through email that he was no longer assigned to them. He alleged that he raised the question of
notifying his repair stations with S1 who said not to worry and that the office would take care of
it. He stated that he is not aware of any other employee in or around his pay band who were treated
in a same or similar manner. He acknowledged that prior to this FAB complaint, he had been
counseled for similar infractions. Complainant also asserted that he believes that there was some
form of anti-Semitism going on. He believed that AM, S1 and CW1 discriminated against him.2

S1 affirmed that in or around January 2011, Complainant was informed that a FAB complaint had
been filed against him. S1 explained that the substance of the complaint concerned allegations
that Complainant made inappropriate gestures to female coworkers in Hong Kong. S1 stated that
in or around January 31, 2011, Complainant was interviewed by two U.S. Embassy managers to
ascertain the facts of what occurred with Complainant during his work assignment in Hong Kong,
and that subsequently led to the filing of a FAB complaint. S1 added that on or about March 24,
2011, he conducted his own interview of Complainant where he proceeded to ask more specific
questions about the allegations and forwarded the answers up the chain of command.

S1 stated that during his interview, Complainant admitting that his computer contained emails
from him to one of the female coworkers named in the FAB complaint discussing how “fine” and
“sexy” Complainant believed her to be, and there were emails from Complainant to one of the
female coworkers suggesting they should get together. Based upon this information, S1 explained
that he confiscated Complainant’s computer and disabled his email capability until the conclusion
of the investigation. Complainant was given another computer to complete his work assignments
about a day after his prior work computer was confiscated. S1 also affirmed that Complainant was
without a computer for about a month; however, Complainant had access to other computers when
administrative personnel were not using theirs.

S1 also asserted that he informed Complainant that he “was to have no contact with the repair
station where the complaint was filed, and that he was not to talk to anyone in the office about the
allegations made” until the investigation was complete. S1 further stated that Complainant was
not allowed to travel and that all of Complainant’s certificate management responsibilities were
removed. However, S1 averred that Complainant was immediately assigned the responsibility of
performing internal audits during this period.

2 The record indicates that prior to his retirement, CW1 had a poster or flyer in his office with
German words which were posted over the gates of Auschwitz. However, Complainant was not
aware of this fact until after the events at issue herein.
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The record shows that Complainant’s coworker (CW2) was the only Agency employee who had
direct knowledge of Complainant’s conduct in Hong Kong. CW2 stated that Complainant often
engaged in unprofessional conduct when traveling on work assignments. In addition, CW2
affirmed that when he got back from his travel to Hong Kong, he commented to another co-worker
(CW4) at the IFO in Singapore that Complainant performed badly as usual; however, CW2 denied
giving CW4 any details. CW4 contradicted CW2’s statement noting that CW2 gave him details
of the trip which prompted CW4 to report the information to S1. According to CW4, his report
prompted S1 to follow-up with CW2. While the record indicates that CW2 refused to sign the
alleged statement he made to the FAB due to inaccuracies, we note that he does not deny that
Complainant’s behavior in Hong Kong was inappropriate.

Proposed Five-Day Suspension and Two-Day Suspension

The record shows that on or around April 5, 2011, the FAA presented Complainant with the
findings of its investigation into the FAB complaint filed against him and issued a proposed five-
day suspension for the following two specifications: (i) “Engaging in disreputable conduct which
reflects unfavorably on the Agency” and (ii) Misuse of Government Computer.”

The proposed five-day suspension letter stated that the U.S. Embassy Singapore human resources
staff interviewed Singapore IFO employees and U.S. Consulate Hong Kong staff members
interviewed Jet Aviation repair station employees. The suspension letter detailed the findings from
the interviews which includes, but is not limited to’ statements provided by an Administration
Officer (AO) (female) at the Jet Aviation repair station in Hong Kong, and other team members,
noting that Complainant was directing inappropriate and non-subtle physical and verbal contact
toward AO during transportation to/from a team lunch and throughout a team lunch, including
invading AO’s personal space, grabbing AO’s hand, discussing his personal life, and causing AO
to feel uncomfortable.

In addition to the interviews, the record contains emails from Complainant to a female employee
in Hong Kong (A1) which forms a basis for the specification pertaining to Misuse of Government
Computer in the suspension notice. Complainant sent the following email to A1 on January 19,
2011:

I just have to tell you, and I really hope you don't mind; you are just so fine. There
it is, I said it, that's my story and I'm stickin to it, so there!

After his female coworker responded that she did not understand his message, he responded, on
January 20, 2011, in part, as follows:

What I mean in my message is: you look so fine (terrific, beautiful, attractive,
sexy ... big on the sexy. Almost fell out of my chair!) I guess I'm trying to say, that
when I saw you I thought ... wow, that's a fine looking woman and what a figure
(shape). That's my story and I'm sticking to it. Then you send me another photo.
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What are you trying to do? Give me a heart attack. I hope I make you laugh [A1],
and I hope to see you again when I return. But if you feel differently, well, its ok,
just say so dear. Sometimes I just say too much. My big mouth!!! There are always
so many good looking woman [sic], but you have those Betty Davis eye's [sic] that
stopped me in my tracks.

A letter dated September 30, 2011, from S1 to Complainant informed Complainant that the
proposed five-day suspension was reduced to a two-day suspension. Complainant served his
suspension from October 5-6, 2011.

Negative Performance Discussion

Complainant alleged that on or around May 3, 2011, S1 provided him negative feedback regarding
his work performance during a discussion regarding Complainant’s third quarter performance.
Specifically, the negative feedback concerned Complainant’s letters of correspondence, as well as,
his interpretation of the regulations and timeliness in the submission of his reports. Complainant
asserted that this was the first time S1 raised concerns of this nature to him. Complainant claimed
that his writing, formatting and editing skills are excellent and his co-workers agreed. Regarding
the timeliness of his assignments, he only recalled maybe one time in August 2010, when he turned
in a report late, but he explained that that report involved extenuating circumstances, including not
receiving information timely from the Avionics Inspector, who conducted the investigation with
him. Complainant also stated that reports were typically submitted on time, but sometimes there
are extenuating circumstances. Complainant stated that he received “Fully Successful”
performance appraisal ratings in 2010, 2011, and 2012.

S1 affirmed that on or about May 3, 2011, during a performance discussion of third quarter
performance Complainant was given negative feedback concerning his letters of correspondence,
his interpretation of the regulations and his timeliness in submitting reports. S1 asserted that
Complainant’s performance was lackluster. He also gave the following examples: (a) every time
he received a letter from Complainant he had to send it back to him; (b) on several occasions,
letters of finding were written badly and had to be corrected; (c) each person who acted as the
Office Manager when S1 was out of the office felt Complainant's writing was bad and they would
leave Complainant's letters for him to review and have corrected; (d) a well-written Letter of
Investigation (LOI) was impossible to get from Complainant; (e) getting the day-to-day work
product from Complainant was difficult; (f) it was hard to identify the issues Complainant found
at the repair stations due to his writing style; and (g) Complainant's writing skills were poor. S1
added that he did not ask Complainant to obtain writing skills training and notes that other
subordinate employees at Complainant's pay-band level were also given negative feedback
concerning letters of correspondence.

S1 further stated that he informed Complainant that his interpretation of the regulations was
lacking but does not recall when this occurred. S1 also noted that other subordinate employees
around Complainant's pay-band level were given negative feedback regarding their interpretation
of the regulations.
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S1 added that on or about May 3, 2011, he raised the issue of the timely submission of certain
reports being poor, including Enforcement Investigative Reports (EIRs). While he asserted the
issue had been previously raised, he could not remember the specific EIRs. S1, again, stated that
Complainant was not the only inspector who was not timely with EIRs.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

Hostile Work Environment

To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily
protected class; (2) that he was subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on his
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

The Commission notes that Complainant chose to withdraw his request for a hearing; therefore,
the Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on his religion and prior protected EEO activity, management
officials subjected him to a hostile work environment. Complainant alleged several incidents of
what he believed to be discriminatory and retaliatory harassment. The Commission finds that
Complainant has not shown that he was subjected to conduct sufficiently severe or pervasive to
create a hostile work environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a
hostile work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. More specifically, as to claims (1) and (2), the record reveals
that Complainant was subjected to the FAB and suspended as a result of his inappropriate actions
toward a coworker. Agency management seized Complainant’s computer and restricted his email
access during the investigation based on the inappropriate behavior in which he engaged when he
used his government computer and his email account to send inappropriate messages to a
coworker. Regarding claim (3), S1 averred that his feedback during a discussion of Complainant’s
third quarter performance were based on his observations that Complainant’s performance was
lackluster and that Complainant’s work product often required substantial revisions.
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S1 noted that he had also addressed the timeliness of Complainant’s work product submissions
with Complainant previously. We note that it is undisputed that S1 had no knowledge that
Complainant was Jewish or engaged in protected EEO activity.3

The Commission concludes that Complainant has not shown that he was subjected to a
discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant
claims that he was subjected to disparate treatment, the Commission finds that, as discussed above,
Complainant has not demonstrated that the Agency’s explanation for its actions was pretext for
discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected
to discrimination, reprisal, or a hostile work environment as alleged.

CONCLUSION

Accordingly, based on a thorough review of the record, we AFFIRM the Agency’s decision.4

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

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:

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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission.

3 While it is unclear from the record whether, or not, CW1 held anti-Semitic views, assuming such
is the case, we find CW1’s held biases irrelevant to this case, as he was not a responsible
management official and retired prior to the events at issue herein.

4 We note that Complainant raises no argument in his appeal.
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Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole

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discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 26, 2019
Date