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

Equal Employment Opportunity Commission

Mar 27, 2023

Appeal No. 2022002633 (E.E.O.C. Mar. 27, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sylvester D.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2022002633 Hearing No. 531-2020-00305X Agency No. 2019-28303-FAA-02 DECISION On April 12, 2022, 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 15, 2022, final order concerning his 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a System Specialist at the Agency’s Andrews Air Force Base in Andrews Air Force Base, Maryland. Andrews Space Systems Command Manager (Manager) was his first-line supervisor. Report of Investigation (ROI) at 101, 117. Air Tasking Order Technical Operations (ATO) was his second-level supervisor. ROI at 101, 130. 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. 2022002633 2 On March 7, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African- American), color (Black), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On March 1, 2018, an employee referred to him and another black male employee as a "Bitch." He repeatedly complained to management but this continued; 2. In October 2018, management did not believe him or take appropriate action when he reported theft of money from his office. The money was eventually returned but the incident continues to be used to taunt him; 3. On or about January 23, 2019, management and an employee submitted falsified documents to Complainant’s insurance company after the employee backed into his vehicle, falsely making Complainant appear to be at fault. As a result, he had to pay a deductible and he and his personal insurance company have still not been reimbursed; 4. On unspecified dates, he was denied training and disqualified from promotional activities and opportunities. This was continuous from January 2018 to July or August 2019; 5. He was required to maintain certification in order to drive a white employee to work sites on the airfield. Complainant and another African-American employee were the default drivers, and white employees were only assigned if no African-American employees were available. This was continuous during his employment until the white employee was promoted to a desk job around April or May 2018; and 6. On unspecified dates, he was required to keep a strict 6:00 a.m. to 4:00 p.m. schedule, and he was counseled for tardiness. This schedule happened in one week, although throughout his entire period of employment, continuing through the present, his work hours have been closely monitored while those of white employees have not been. 7. On unspecified dates, after Complainant witnessed abusive behavior among his coworkers, they looked at him in a threatening and intimidating manner to deter him from reporting the behavior The Agency accepted the complaint for investigation. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. After the case was assigned to the AJ, the Agency submitted a Motion to Dismiss the Complaint. On April 21, 2021, the AJ dismissed claim 7 but denied the Agency’s motion with respect to claims 1 through 6.2 2 We note Complainant does not contest the AJ’s dismissal decision. As Complainant failed to challenge the dismissal, we will not address it further herein. See Mario G. v. U.S. Postal Serv., EEOC Appeal 0120170779 (Aug. 30, 2017) citing EEO MD-110 at Chap. 9 § IV.A (“Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal”). 2022002633 3 Subsequently, over Complainant's objections, the AJ assigned to the case granted the Agency’s October 29, 2021, motion for a decision without a hearing and issued a decision without a hearing on February 18, 2022. The AJ found that claim 1 was a singular event which was not related to the other claims alleged. The AJ found that Coworker 1 called Complainant “bitch” on one occasion and noted that the word “bitch” is not a word typically associated with racial animus. The AJ held that Complainant believed that Coworker 1 called Complainant “bitch” to other employees, however Complainant did not provide any evidence of this. Therefore, the AJ concluded this was a single incident of inappropriate language that did not rise to the level of harassment. As to claim 2, the AJ determined that the Agency provided legitimate, nondiscriminatory reasons for its actions. The AJ found that Complainant’s issue was that the Agency failed to investigate the stolen money. The record indicated that Coworker 2, Complainant’s officemate, was in possession of Complainant’s $50 and he returned the money to Complainant as soon as Coworker 2 realized he had Complainant’s money. As such, the Agency determined an investigation was unnecessary and the AJ found that Complainant did not establish that the Agency’s reason was pretext for discrimination. With claim 3, the AJ determined that Manager was initially involved in the required response the day of the car accident. After the first day, ATO handled the matter, including assisting Complainant with getting his car repaired and filing the final report. The AJ found that any allegation made by Complainant that ATO attempted to help the person who hit his car, because that person is white, had no support in the record. Rather, the AJ found that Complainant relied upon mere speculations, without probative evidence, that did not provide evidence of pretext. In claim 4, the AJ again found that there was no evidence that any denial of training was due to Complainant’s race. The AJ reviewed Complainant’s purported comparators who were afforded training when Complainant was not. The AJ found that the two named individuals were not proper comparators, because they had completed prerequisites for training and Complainant had not. The AJ also noted that the evidence indicated that many employees in Complainant’s circumstances were denied training. The AJ found that Complainant’s speculative statements were insufficient evidence to prove racial animus. Concerning claim 5, the Agency asserted that Coworker 1 was unable to drive himself. As such, Coworker 1 occasionally required the use of a driver at work. The Agency said that they selected a driver for Coworker 1 based upon who was available at the time of necessity. The AJ found that the record was unclear on the number of times that Complainant was required to do this, and Complainant, himself, was unable to provide any quantification beyond it being “continuous.” The AJ found that Complainant did not provide evidence that being required to drive Coworker 1 to a work site on a number of occasions was a tangible employment action or something of such severity that it had a significant impact on Complainant’s working condition. As such, the AJ found that Complainant failed to prove discrimination as to claim 5. 2022002633 4 Finally, as to claim 6, the AJ proffered that “[k]eeping a strict schedule and being counseled for tardiness during one week of employment are simple expectations and consequences applicable to any employee.” Furthermore, the AJ noted that “Complainant focuses on one instance in which he was 15 minutes late and told to adjust his schedule accordingly.” As such, the AJ found, Complainant could not provide evidence that this incident constituted discrimination. In sum, the AJ determined the Agency provided legitimate, nondiscriminatory reasons and Complainant failed to provide evidence of pretext. The AJ noted that Complainant failed to show any evidence of discriminatory intent and only provided mere speculation in support of his claims. Furthermore, the AJ held that Complainant did not show that he was subjected to events which were severe or pervasive enough to create a hostile work environment. As such, the AJ found that the claims failed both regarding disparate treatment and harassment. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in their finding that there were no material facts in dispute, relaying numerous alleged facts that should cause the Commission to either remand the case for a hearing or to reverse the AJ’s finding.3 In response, the Agency argues that the decision implementing the AJ’s decision should be upheld. 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. (Aug. 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). 3 A review of Complainant’s brief reveals he attempts to raise new issues and claims on appeal. The record reflects that these issues were not counseled. The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). 2022002633 5 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. While Complainant raises numerous alleged facts in dispute, even assuming the alleged disputed facts and construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder 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 Accordingly, we AFFIRM the Agency’s final order implementing 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. 2022002633 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. 2022002633 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 March 27, 2023 Date