0120100782
01-25-2012
Ryan V. Dierking, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Ryan V. Dierking,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120100782
Agency No. 2007-21172-FAA-04
DECISION
On December 4, 2009, Complainant filed an appeal from the Agency’s
November 10, 2009, 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. The Commission deems the
appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency’s final
decision.
ISSUE PRESENTED
Whether the Agency erred in finding that it did not retaliate against
Complainant for engaging in EEO activities in 2004 when it did not raise
his pay after he completed training for his position in 2007.
BACKGROUND
Complainant worked as an Air Traffic Control Specialist (ATCS), at the
Agency's Chicago Center located in Aurora, Illinois. While training,
he developed a thyroid infection (sub-acute thyroiditis) that made it
difficult for him to concentrate. As a result, he failed a training
class and was removed from his ATCS position. He then took a lower-level
position in the Agency’s “Flight Data” division. Complainant
eventually brought his condition under control through treatment.
First EEO Complaint
In 2001, he filed an EEO complaint against the Agency, alleging
discrimination on the basis of disability when the Agency removed him from
his ATCS duties, including prohibiting him from attending ACTS training.
The parties settled the complaint on January 29, 2003. The Agency agreed
to reinstate Complainant to the ATCS position and place him in the next
available training class. As a result, the Agency reinstated Complainant,
and he resumed his training in April 2004.
Agency’s Pay Plans
In September 2006, the Agency introduced a new pay plan for air traffic
controllers. According to Complainant, under the old plan, air traffic
controllers who completed their training received substantial increases
in salary levels and compensation. But under the new pay plan, air
traffic controllers who completed their training did not receive the
substantial increase in compensation.
Complainant completed his training in January 2007. The Agency told him
that he would not receive the pay increase because he did not complete
training before the September 2006 implementation of the new pay plan.
Second EEO Complaint
On March 23, 2007, Complainant filed a new EEO complaint, alleging
that the Agency discriminated against him on the bases of disability
(Subacute Thyroiditis) and in reprisal for prior protected EEO activity
when the Agency did not increase his pay after he completed his training.
Specifically, he maintained that his lack of a pay increase was due
to a two-year delay in his training, caused by the Agency’s previous
disability discrimination and his participation in the EEO process.
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 (AJ).1 In
accordance with Complainant’s request, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).
Final Agency Decision
For the disability claim, the Agency found that Complainant was not
an individual with a disability, as defined by the Rehabilitation Act.
For reprisal, the Agency found that Complainant could not establish a
prima facie case because (1) the relevant management officials were not
aware of his prior EEO activity, (2) there was too long a period between
his protected activity and the adverse action to establish a temporal
nexus. And even if Complainant had established a prima facie case of
reprisal, the Agency articulated a legitimate, non-retaliatory reason
for not increasing Complainant’s pay upon his completion of training.
The terms of his previous settlement agreement contained no provision
to preserve his pay status. Upon completing his training, the Agency
handled his compensation in accordance with the pay plan that was in
effect at the time.
The Agency determined that Complainant did not establish that this
reason was a pretext to mask a retaliatory motive. The Agency found
specious Complainant’s argument that, but for the Agency’s previous
disability discrimination, he would have completed the training program
two years earlier and would have been eligible for the pay increases
under the old pay plan. The Agency noted that the previous allegations
of discrimination had been resolved through a settlement agreement.
Therefore, there were no findings of discrimination on those allegations,
and Complainant cannot attribute any subsequent monetary losses to those
settled events. In addition, the Agency found no evidence suggesting that
he was not given the same training opportunities as other air traffic
controllers. Therefore, the Agency found that Complainant failed to
establish pretext. The decision concluded that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant essentially challenges only the Agency’s
finding regarding his reprisal claim.2 He argues that “there is a
direct connection between [his] initial EEO case” and his lack of a pay
increase. If his original EEO complaint had not occurred and taken more
than two years to resolve, he would have easily completed his training
before the new pay plan went into effect in September 2006. He argues
that other air traffic controllers, who started with the Agency around
the time he did in December 2001 but did not engage in EEO activities, are
currently earning more than him because they had no delays in training.
ANALYSIS AND FINDINGS
Standard of Review
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. (November 9, 1999) (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”).
Retaliation
To establish unlawful retaliation, there must be proof that the Agency
took an adverse action because the employee engaged in protected
EEO activity. EEOC Compliance Manual Section 8, “Retaliation,”
No. 915.003, at 8-II.E (May 20, 1998). In a circumstantial evidence
framework, a complainant must first establish a prima facie case of
unlawful retaliation by showing that: (1) the complainant engaged in a
protected activity; (2) the Agency was aware of the protected activity;
(3) the Agency subsequently subjected the complainant to adverse
treatment; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal
No. 01A00340 (Sept. 25, 2000).
Upon review, we find that Complainant could not establish element (4)
of the prima facie case for reprisal. For the sake of argument, we will
assume that Complainant last engaged in protected EEO activity in April
2004, the time when he resumed his training. The adverse treatment at
issue in this case is the lack of a pay increase when he completed his
training in January 2007. Typically, to show that the protected activity
and the adverse treatment are related, the evidence should demonstrate
that the adverse action occurred shortly after the protected activity.
Here, the time-period between the protected activity and adverse treatment
was well over two-years.
Even if we assumed, for the sake of argument, that Complainant could
establish a prima facie case through the direct causation theory, we
find that the Agency articulated legitimate, non-retaliatory reasons
for not increasing Complainant’s pay when he completed his training.
The Agency states that it adhered to the provisions of a new pay plan,
which went into effect in September 2006. The new pay plan provided that
air traffic controllers who finished their training after September 2006
would not be entitled to pay increases for completing their training.
Because Complainant completed his training in January 2007, he was not
eligible for a pay increase, under the new pay plan.
We determine that Complainant did not sufficiently show that the
Agency’s articulated reason was a pretext to hide a retaliatory
motive. According to Complainant, the Agency changed his pay status
in September 2006, which coincides with the time the new pay plan went
into effect. This demonstrates that the Agency acted in conformance with
a consistently applied nondiscriminatory pay policy, and suggests there
was no retaliatory motive. We also find no relevant comparator evidence
indicating that the Agency increased pay for air traffic controllers
who finished training after September 2006 and who had no prior history
of EEO activities. Finally, the Commission cannot find the Agency’s
business decision to apply the new pay plan to Complainant’s situation
to be retaliatory simply because Complainant believes the decision to
be in error or misjudgment.3 Therefore, we find that Complainant did
not show that the Agency subjected him to retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision, finding no discrimination on the bases alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__1/25/12________________
Date
1 We note that the Agency initially dismissed this complaint. Upon
review, the Commission reversed the Agency’s decision to dismiss the
complaint, and remanded the matter for investigation. Dierking v. Dep’t
of Transportation, EEOC Appeal No. 0120081782 (Oct. 15, 2009).
2 On appeal, Complainant does not challenge the Agency’s finding that
he was not an individual with a disability, under the Rehabilitation Act.
The Commission has the discretion to review only those issues specifically
raised in an appeal. Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, 9-10 (Nov. 9, 1999). Accordingly, we will not
address the disability claim in this decision.
3 If Complainant believes that the Agency’s actions fail to adhere
to relevant personnel policies or practices, in that he should be
classified under a different pay scale, he should challenge the substance
of the Agency’s decision in the appropriate administrative forum.
The Commission has no authority to determine the merits of whether the
Agency correctly applied the new pay plan to Complainant’s situation,
as someone who was rehired after a two-year absence.
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01-2010-0782
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100782