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

Equal Employment Opportunity Commission

May 12, 2022

Appeal No. 2021000873 (E.E.O.C. May. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hilda W.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2021000873 Hearing No. 570-2018-00415X Agency No. 2017-27428-FAA-02 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final action 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. At the time of events giving rise to this complaint, Complainant worked as a Business Manager, FV-0340-K, at the Agency’s Air Traffic Organization, Flight Services Directorate in Washington, D.C. On July 10, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African- American), sex (female), and in reprisal for prior protected EEO activity when: 1. Since January 19, 2017, the Director for Performance and Analysis (Director) failed to support Complainant’s completion of duties and responsibilities; 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. 2021000873 2 2. On or about January 24, 2017, Complainant became aware that the Director applied and held her accountable for supervisory performance standards since August 2016; 3. Since January 24, 2017, the Acting Deputy Director (ADD1) and the Director failed to support and assist Complainant with addressing her concerns that a coworker (CW1) did not adequately oversee contractors or provide appropriate contract management and oversight which impacted her position as Team Lead; 4. On January 24, 2017, the Director accused Complainant of failing to process procurement requests for three contracts; 5. From February 6, 2017, until April 18, 2017, ADD1 and the Director failed to support Complainant’s supervisory decision to remove a contractor for misuse of government time; 6. On February 6, 2017, the Director claimed Complainant’s role as supervisor negatively affected her team; 7. On March 13, 2017, ADD1 reassigned Complainant to another Acting Deputy Director (ADD2), who failed to support and assist her with her concerns and lack of contract oversight by CW1; 8. On or about April 5, 2017, ADD1 and ADD2 failed to provide the duties, correct labor category, and labor rate for a support contractor which affected Complainant’s ability to perform her responsibilities; 9. On or about April 12, 2017, Complainant was accused of displaying lack of candor, working outside of her authority, attempting to issue an illegal contract modification, taking work away from a contractor, and launching an investigation into a contract; 10. On or about April 12, 2017, ADD1 removed Complainant as contracts oversight lead, despite ADD1 and ADD2 failing to address discrepancies on contracting invoices and inappropriate labor category classifications and labor rates which impacted her ability to perform her position; 11. On or about April 18, 2017, after ADD2 accused Complainant of creating anxiety and low office morale, her supervisory appointment was rescinded, resulting in the demotion of rank and pay; 12. On April 18, 2017, the ADD2 terminated Complainant’s supervisory appointment, demoting Complainant in rank and pay; 13. On or about May 15, 2017, ADD2 issued Complainant a mid-year performance review which she believes is inaccurate; and 14. On June 29, 2017, the Deputy Vice President of Air Traffic Organization System Operations denied Complainant’s request for reconsideration of her supervisory demotion. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. 2021000873 3 In the decision, the AJ found that the Agency articulated legitimate, non-discriminatory reasons for its actions. For example, Complainant was removed from her probationary managerial position for her conduct and performance. The Agency explained that Complainant’s conduct created anxiety in the workplace and low employee morale which had a negative effect on the efficiency of the service. In addition, Complainant was removed because she exhibited a lack of candor which caused a loss of confidence in her ability to lead. The Agency asserted that Complainant attempted to lower the labor rate of a contract employee and, when asked who directed her to make such a change, she changed her story several times giving the impression that she lacked candor. Further, management officials removed Complainant as contracts oversight lead because they believed that she was attempting to retaliate against the contract employee. Agency management further explained that Complainant had previously threatened to fire contractors, she knew about the contract employee’s interview with the investigator regarding an employee complaint against her, she had transferred financial duties away from the contract employee, she repeatedly attempted to lower the contract employee’s rate despite meeting and speaking with ADD2 who disagreed, and her lack of candor during the April 12, 2017 meeting. The Agency further provided statements from two employees who felt that Complainant was creating a hostile work environment. Regarding Complainant’s overall hostile work environment claim, the AJ determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found that there was no evidence demonstrating that the conduct at issue was based on discriminatory or retaliatory animus. The AJ noted that a reasonable person in Complainant’s position may have found the personnel actions and treatment that she endured to be difficult or frustrating; however, the alleged actions concerned various supervisory practices and personnel actions, and Agency programs and operations. Thus, the substance of the allegations were common workplace occurrences not rising to the level of a hostile work environment. The AJ found that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. When the Agency failed to issue a final order within 40 days of receipt of the AJ's decision, the decision became the Agency's final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. 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- 2021000873 4 110), 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). 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 or retaliatory 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 or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2021000873 5 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. 2021000873 6 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 May 12, 2022 Date