Kesha Y.,1 Complainant,v.Robert L. Sumwalt, Chairman, National Transportation Safety Board, Agency.

Equal Employment Opportunity Commission

Mar 15, 2019

0120171835 (E.E.O.C. Mar. 15, 2019)

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

Kesha Y.,1
Complainant,

v.

Robert L. Sumwalt,
Chairman,
National Transportation Safety Board,
Agency.

Appeal No. 0120171835

Hearing No. 450-2014-00259X

Agency Nos. NTSB201304, NTSB201305

DECISION

On April 28, 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
March 21, 2017 final order concerning her 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 finding no discrimination as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant teleworked full-time from her
Texas residence as a Staff Assistant, GS-0303-07 for the Agency’s Office of Aviation Safety
(OAS) headquarters in Washington, D.C. The record shows that, prior to her OAS position,
Complainant had been a GS-9 Administrative Assistant in the Office of Highway Safety (OHS) in
Texas.

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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On December 6, 2013 and on February 7, 2014, respectively, Complainant filed formal complaints
(NTSB201304 and NTSB201305) alleging that the Agency had subjected her to discrimination
and reprisal.2 After the consolidation of her two complaints, the claims at issue are:

1. Whether Complainant was discriminated against her on the bases of race (African-
American), sex (female), color (black), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964, when on April 10, 2013,
Complainant was denied participation in the Guaranteed Home Sales Program
offered to government employees under PCS funding.

2. Whether Complainant was discriminated against based on retaliation, as a result of
the 2013 regional office closures, when on April 11, 2013, and May 6, 2013, the
Agency created and offered Complainant a less favorable reassignment option,
despite the fact that the Agency allegedly knew (or should have known) there were
more favorable options available in the Office of Highway Safety and the Office of
Railroad, Pipeline, and Hazardous Material Investigations.

a. On April 11, 2013, Complainant learned that Complainant was the only displaced
employee being directed to relocate.

b. On February 16, 2014, Complainant's request to relocate to the regional office
located in Denver, Colorado was denied (to preclude Complainant from moving to
Washington D.C.) when she learned (May 23, 2013) that a displaced White-male
highway employee was approved a request to relocate to Houston, Texas, where no
regional office is located.

c. On April 11, 2013, Complainant learned that one of the displaced administrative
employees was converted to permanent full time telework and allowed to retain her
current grade level.

3. Whether Complainant was discriminated against based on retaliation, race (African
American), and color (black), when as a result of the 2013 regional office closures,
on May 6, 2013, Complainant was denied a request to be converted/reassigned to
Regional Highway Accident Investigator (Trainee) to preclude relocating.

4. Whether Complainant was discriminated against based on retaliation for prior
EEO activity when she was not selected for the position of Administrative Officer,
GS-30341-11, that was advertised under Vacancy Announcement RPH-918196-
MIB.

2 In her two formal complaints, Complainant raised additional claims which the Agency dismissed
on procedural grounds. An EEOC Administrative Judge affirmed their dismissals. We note that
we see no error in the dismissal of these claims, and since Complainant does not challenge those
dismissals on appeal, we shall not address those dismissed claims herein.
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5. Whether Complainant was discriminated against based on retaliation for prior
EEO activity, race (African American), and color (black) when she was denied access
to a personnel pattern and practice used by the Human Resources Division and
management officials to advance and promote employees to higher grade level
positions, specifically:

a. On January 15, 2014, Complainant's request to receive a noncompetitive promotion
to an upward mobility or developmental management position in OHS was denied.

b. On January 15, 2014, Complainant's request to receive a developmental
assignment as a Regional Highway Accident Investigator Trainee for the specific
purpose of providing her with investigative experience was also denied.

c. On February 3, 2014, Complainant’s request to receive a one-year noncompetitive
detail to the Acquisition and Lease Management Division for the specific purpose of
providing her with the certification and qualification required to compete for
positions in the GS-1102 classification series was denied.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). Complainant requested a hearing with the EEOC. On
May 6, 2016, the AJ consolidated the two instant complaints. On December 2, 2016, the Agency
filed a Motion for Summary Judgment, and Complainant filed her opposition on January 26, 2017.
The AJ subsequently issued a decision by summary judgment in favor of the Agency. Specifically,
the AJ found that the Agency proffered legitimate, nondiscriminatory reasons for its actions that
Complainant failed to establish were pretextual or motivated by discrimination or reprisal.
Accordingly, the AJ found that Complainant had not been subjected to discrimination as alleged.
The Agency concurred and issued a decision finding no discrimination. Complainant appealed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment 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. In
rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).
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In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence, and must further establish that such facts are material under applicable law. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that the
agency was motivated by discriminatory animus. Here, however, Complainant has failed to
establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of
Complainant, a reasonable fact-finder could not find in Complainant’s favor.

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the
evidence did not establish that Complainant was discriminated against by the Agency as alleged.

CONCLUSION

The Agency’s decision finding no discrimination is AFFIRMED.

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. 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.
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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
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

March 15, 2019
Date