[Redacted], Ramiro R., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.Download PDFEqual Employment Opportunity CommissionMar 23, 2021Appeal No. 2019004948 (E.E.O.C. Mar. 23, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ramiro R.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2019004948 Hearing Nos. 480-2018-00136X and 480-2019-00133X Agency Nos. DOT-2017-27308-FAA-06 and DOT-2018-27655-FAA-06 DECISION 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 June 19, 2019 final order concerning an 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as an Airway Transportation Systems Specialist at the Agency’s Ontario Systems Support Center in Ontario, California. On June 6, 2017 and March 16, 2018, Complainant filed two formal complaints. Complainant’s complaints consisted of the following matters: Complaint 1 (DOT-2017-27308-FAA-06): Whether Complainant was subjected to discrimination and harassment (non-sexual) based on age (52), sex (male), and in reprisal for 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. 2019004948 2 prior protected EEO activity beginning February 2017 through April 27, 2017. Some examples include, but are not limited to the following: A. since February 2017, Complainant’s supervisor and co-workers stalked and cyberstalked him; B. on February 7, 2017, Complainant’s supervisor badgered Complainant with slanderous and homophobic comments during a morning teleconference provoking a negative reaction from him; C. on February 16, 2017, Complainant’s supervisor demanded a report from him regarding the February 7, 2017 incident and refused to respond to Complainant’s call and text message to discuss the report after he submitted it; D. on February 16, 2017, Complainant’s supervisor filed an incident report with the Ontario Police Department accusing Complainant of engaging in a violent outburst on February 7, 2017, and initiated a violence-in-the-workplace investigation; E. on or about February 21, 2017, Complainant was excluded from an All-Hands Meeting; F. on February 21 and 22, 2017, Complainant was required to participate in an investigation; and G. on April 27, 2017, Complainant was ordered to surrender his Ontario Airport Security Badge. Complaint 2 (DOT-2018-27655-FAA-06): A. Whether Complainant was discriminated against based on age (YOB: 1964) and in reprisal for prior protected EEO activity, when the following occurred: 1. on January 10, 2018, Complainant was issued a Notification of Proposed Removal, which he was first informed was pending against him on November 30, 2017; and 2. on February 6, 2018, Complainant was forced into a Treatment Rehabilitation Plan (TRP) after being required to see a pre-selected psychiatrist whose diagnosis resulted in the TRP. B. Whether Complainant was subjected to harassment (non-sexual) based on age and in reprisal for prior EEO activity as indicated by the following incidents: 1. on January 10, 2018, Complainant was issued a Notification of Proposed Removal, which he was first informed was pending against him on November 30, 2017; 2019004948 3 2. on December 1, 2017, Complainant’s first level supervisor gave him orders to complete an inventory task that was impossible to complete, and yelled at Complainant when he referred to this as a prohibited practice; 3. on February 6, 2018, Complainant was forced into a TRP after being required to see a pre-selected psychiatrist whose diagnosis resulted in the TRP; and 4. management denied Complainant’s requests related to the Notification of Proposed Removal, requirement that Complainant attend a rehabilitation center and assigned location of an Intensive Outpatient Program he attended. After its investigation into the complaints, the Agency provided Complainant with copies of the reports of investigation and notices of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing for each complaint. Thereafter, the Agency submitted separate motions for summary judgment for each complaint and Complainant filed a response. The AJ subsequently consolidated the cases and issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.2 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). 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. 2 On appeal, Complainant only disputes the AJ’s finding on claims raised in Complaint 2, DOT- 2018-27655-FAA-06. Therefore, we limit our analysis to the issues Complainant raised on appeal. 2019004948 4 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. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing, finding no discrimination. 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. 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. 2019004948 5 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. 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 23, 2021 Date Copy with citationCopy as parenthetical citation