[Redacted], Ethan M., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Jan 5, 2023

Appeal No. 2022000314 (E.E.O.C. Jan. 5, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ethan M.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2022000314 Agency No. 2020-28955-FAA-04 DECISION On October 22, 2021, 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 23, 2021 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 Air Traffic Control Operations Supervisor, FV-2152-J, at the Indianapolis Air Traffic Route Control Center in Indianapolis, Indiana. On October 26, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability (tinnitus, ankle injury), age (41), and reprisal (prior protected EEO activity) when: 1. On September 25, 2020, Complainant learned that he is receiving a lower salary than coworkers in similar positions; 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. 2022000314 2 2. On September 28, 2020, the Operations Manager (OM) sent an email instructing that pay concerns should be addressed to him and requiring Complainant to keep him informed of correspondence he had with other employees regarding pay; and 3. On October 19, 2020, OM sent Complainant unsolicited text messages about his EEO complaint. 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 EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that he was subjected to discrimination or reprisal as alleged. FACTUAL BACKGROUND Claim 1 - Pay Disparity Complainant identified his second-line supervisor (S2) as the management official responsible for his receipt of lower pay than younger supervisors who were hired after Complainant. Complainant asserted that all supervisors were on the same pay scale, but there was a disparity in pay because new supervisors were issued a 10 percent raise upon hiring. S2 testified that supervisors’ salaries, including Complainant’s were set by the Human Resources office (HR) at the time of hiring and not by him. S2 also explained that he did not arrive at the facility until after Complainant was hired and he was not involved in Complainant’s hiring process or in setting Complainant’s pay. S2 stated that he knew of no blanket policy for a 10 percent raise, but he was aware of raises from four to ten percent being offered by HR. S2 also asserted that a supervisors’ age, disability status, and EEO activity would not have been factors in HR’s salary determinations. S2 further explained that he had no awareness of the email that purportedly advised Complainant that he was eligible to have his pay increased or corrected, because that also predated his arrival. S2 stated that Complainant’s salary after hiring would have been adjusted by HR based on several factors including performance-based organizational incentives, government-wide adjustments, and individual performance ratings. S2 noted that this could result in a wide variance in same seniority salaries. S2 further asserted that he was unaware of Complainant’s age, disability, or EEO activity until after Complainant filed this EEO complaint. Claim 2 - OM’s Email OM stated that the purpose of his email was to inform the supervisors receiving lower pay that he had filed a whistleblower complaint in pursuit of having the pay disparity rectified. In addition, OM asserted that the email also asked the supervisors to keep this information confidential and to not ask other employees about their pay. OM testified that his email did not instruct Complainant that his pay concerns should be addressed to OM or require Complainant to 2022000314 3 keep OM informed of his communications with other employees regarding pay. OM stated that the email encouraged the supervisors to continue their own efforts to have the pay issue corrected and to share their efforts with each other. OM further noted that he was not aware of Complainant’s age, disability, or EEO activity until October 19, 2020, which was after he sent the email.2 Claim 3 - OM’s Text Message OM explained that his October 19, 2020 text messages were not an inquiry about Complainant’s EEO complaint; rather, he inquired about why Complainant disclosed OM’s involvement with the Office of Special Counsel regarding the pay disparity issue which jeopardized the whistleblower complaint that OM filed as an attempt to rectify the pay disparity. OM further asserted that the text message referenced the September 28, 2020 email where OM asked the supervisors to keep his involvement confidential and shared that he feared retaliation from management if his whistleblower activities became known. OM also stated that Complainant’s age, disability, and EEO activity were not factors in his actions regarding the text message. S2 testified that he responded to Complainant’s report about OM’s text message by reassigning OM away from Complainant and initiating an investigation into OM’s conduct. 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”). Disparate Treatment Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2 OM was not in Complainant’s chain of command. 2022000314 4 Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); see Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 144 (2000) (applying McDonnell Douglas paradigm to private sector ADEA claim); Prewitt v. U.S. Postal Serv., 662 F.2d 292 (5th Cir. 1981) (applying this analytical framework to cases brought under the Rehabilitation Act). We assume for purposes of this decision that Complainant has established a prima facie case of discrimination and retaliation. Complainant alleges that he was subjected to discrimination because he learned that newer supervisors were being hired at a salary greater than his own. Complainant acknowledged that he made no formalized complaint to the Agency about this matter prior to filing the instant complaint. Complainant asserted without corroborating documentary or testimonial evidence that management’s intent was to encourage younger individuals to accept management positions by providing higher pay. Complainant further asserted without corroborating documentary or testimonial evidence that his disability was a factor because unidentified individuals believed he did not deserve additional salary because he was receiving benefits for being a disabled veteran. S2 denied any involvement in any pay decisions regarding new supervisors and stressed that HR was responsible for setting supervisors’ salaries. S2 emphasized that Complainant’s salary after hiring would have been adjusted by HR based on numerous factors including performance-based incentives and government-wide adjustments. Complainant acknowledged that all supervisors were on the same pay scale; however, he believed that new supervisors were provided a 10 percent raise upon hiring. S2 denied any knowledge of a blanket policy granting a 10 percent raise. While it is possible that Complainant has a legitimate grievance concerning his pay, the record evidence does not support a conclusion that Complainant’s protected classes were a factor. In addition, Complainant does not present any evidence or testimony to rebut OM’s testimony that his actions were meant to assist Complainant. The record shows that Complainant sent a responsive email thanking OM. Upon review of the chain of email correspondence, there is nothing upon which to support a determination that Complainant’s protected classes were a factor in OM’s message or that there was any discriminatory or retaliatory animus at play when OM sent the email. OM stated that he too was seeking resolution of the pay disparity and he shared his whistleblower activity with Complainant and others in confidence to not interfere with that process. Although Complainant declared that he felt his job was being threatened by OM’s email, this is not a conclusion supported by a plain reading of the email correspondence. Further, OM affirmed that he sent the texts to ask why Complainant disclosed his report to the Office of Special Counsel regarding the pay issue when he had asked that the recipients of his previous email not share that information. OM stressed that his actions were only intended to assist Complainant and other supervisors regarding the pay dispute. We find that the circumstances and the context in which the messages were sent do not support a determination that OM had a retaliatory or discriminatory motive in sending the emails and texts. Notwithstanding, S2 initiated an investigation into OM’s conduct and reassigned OM away from Complainant after Complainant reported the incident. 2022000314 5 Upon review of the documentary and testimonial evidence in the record, we find that the evidence does not support a determination that management’s articulated reasons for its actions are a pretext for discrimination or reprisal. Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant's harassment claim is precluded based on our finding that he failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2022000314 6 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022000314 7 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 January 5, 2023 Date