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

Equal Employment Opportunity Commission

Apr 20, 2022

Appeal No. 2020004612 (E.E.O.C. Apr. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shanta S.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020004612 Agency No. DOT-2018-28042-FAA-02 DECISION On August 19, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 28, 2020, final decision 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. At the time of events giving rise to this complaint, Complainant worked for the Agency as a FV- 0340-K Division Manager in the Aviation Logistics Organization (ALO), Design & Construction Division in Washington, D.C. See Report of Investigation (ROI) at 275-93, 306. As a result of an Agency realignment, effective November 25, 2018, Complainant became a FV-0340-K Branch Manager in the newly created Aviation Property Management (APM) Directorate, Project Management Division, Design Development Branch. ROI at 306. On December 20, 2018, Complainant filed an EEO complaint alleging discrimination by the Agency on the basis of race (African-American), national origin (Nigerian), sex (female), color (Black), and age (born in August 1960) when: 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. 2020004612 2 1. On August 10, 2018, she was demoted from Division Manager to Branch Manager; 2. On October 31, 2018, she was given a low rating on her FY18 final performance appraisal, and her work with hiring action packages was not addressed in the appraisal; and 3. On unspecified dates during weekly staff meetings and project review meetings, on a recurring basis she was subjected to beratement, unfair blame for project issues, and inadequate time for corrective measures. At the conclusion of 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 final decision and simultaneously informed the Agency that the investigation was deficient. ROI at 484-514. The Agency ordered a supplemental investigation and at its conclusion, provided her with a copy of the supplemental report of investigation and notice of her right to request a hearing. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f) after receiving the supplemental report of investigation, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In relation to claim (1), the Agency found that Complainant failed to establish that she was subjected to an adverse action because she retained her grade level and pay as a Branch Manager. Assuming arguendo that she could establish a prima facie case of discrimination, the Agency found that the legitimate, nondiscriminatory reason for not selecting Complainant for a new APM Division Manager position; namely, that she had not been performing well in her ALO Division Manager position. Regarding claim (2), again assuming a prima facie case of discrimination, the Agency had provided legitimate, nondiscriminatory reason for rating Complainant fully successful for FY18. Specifically, the Agency stated that Complainant’s Division did not complete projects on time or on budget, over-emphasized design over project management, and accounted for a disproportionate amount of overtime. In an effort to show pretext, Complainant noted that her FY17 appraisal forecasted upcoming challenges in staff and funding shortages, and alleged that management exaggerated the extent to which her projects were not on time and/or within budget. The Agency found that Complainant did not establish pretext for discrimination in relation to these claims. Finally, concerning claim (3), the Agency found that Complainant failed to establish a prima facie case of harassment because she did not establish that she was subjected to any harassment related to or based on her membership in any protected class. The Agency noted that, although Complainant characterized the harassment as recurring, she did not present evidence regarding the severity or pervasiveness of the harassment. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2020004612 3 Complainant submitted a statement in support of her appeal, consisting of seven separately uploaded attachments. On appeal, Complainant contends that the Agency’s final decision should be reversed because she established that she was subjected to discrimination. According to Complainant, much of the final decision was not supported by the evidence. Attachment (5) is a 35-page Major Projects Review presentation, dated March 23, 2018, which Complainant contends shows progress on projects while she was Division Manager and that completion was systematically monitored. 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 (EEO MD-110), 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”). As a preliminary matter, we note that, with the exception of attachment (5), the evidence provided by Complainant on appeal is duplicative of the investigative record or does not appear relevant to determining whether she was subjected to discrimination as alleged. To the extent that Complainant proffers attachment (5), the Major Projects Review presentation, in support of her discrimination claims, this document is not contained in the investigative record. As a general rule, no new evidence will be considered on appeal absent an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110, at Chapter 9, § VI.A.3. Complainant does not contend that this document was not available to her during the investigation and/or supplemental investigation. Moreover, although Complainant specifically identified what she considered deficiencies in the investigative record when she requested a final decision, she did not suggest the inclusion of this document, nor did she mention it during the supplemental investigation. ROI at 484-514; Supplemental ROI at 22-37. Accordingly, we will not consider this evidence submitted for the first time on appeal. Upon careful review of the record, we find that the Agency’s final decision accurately recounted the relevant material facts. The final decision also correctly identified the legal standards for disparate treatment and harassment. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we conclude that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish by the preponderance of the evidence that the Agency subjected her to discrimination or harassment as alleged. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 2020004612 4 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. 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. 2020004612 5 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 April 20, 2022 Date