Tuan P.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Feb 5, 2019

0120172732 (E.E.O.C. Feb. 5, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tuan P.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120172732

Hearing Nos. 480-2015-00368X
480-2016-00349X

Agency Nos. DOT/2014-25870-FAA-06
DOT/2015-26496-FAA-06

DECISION

On August 9, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s June 28, 2017 final order concerning an equal employment opportunity (EEO) complaint
claiming 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.

BACKGROUND

During the relevant period, Complainant worked as an Equal Employment Opportunity Specialist,
I Band, at the Agency’s Office of Civil Rights, EEO Training Institute, Mike Monroney
Aeronautical Center in Oklahoma City, Oklahoma.

Complainant filed two formal complaints on November 6, 2014 and October 7, 2015, respectively.
In the complaints, Complainant claimed that the Agency discriminated against him based on race
(African-American), color (Black), and in reprisal for prior EEO activity 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.
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(1) in July 2014, he learned he was not selected for the position of Equal Opportunity Specialist
(Americans with Disabilities Act (ADA) and Section 504 Compliance – Team Leader),
advertised under Vacancy Announcement No. AWP-ACR-14-BDA8919-35275 (Agency
Case Number DOT/2014-25870-FAA-06) (hereinafter referred to as “Complaint 1”); and

(2) on or about August 19, 2015, he learned that he was not selected for the position of Equal
Opportunity Specialist (ADA and Section 504 Compliance – Team Leader), advertised
under Vacancy Announcement No. AWP-ACR-15-BMN3929-40589 (Agency Case
Number DOT/2015-26496-FAA-06) (hereinafter referred to as “Complaint 2”).

After an investigation of Complaints 1 and 2, Complainant was provided a copy of the investigative
file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency
filed two Motions for a Decision Without a Hearing. The AJ granted the Agency’s motion to
consolidate Complaints 1 – 2 and dismissed two other claims.2 On May 31, 2017, the AJ issued a
decision by summary judgment in favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the two complaints:

Prior EEO Activity

In September 2012, Complainant filed an informal EEO complaint against a former supervisor
which was dismissed in December 2012. The investigator of that complaint later became the
Deputy Director, who played a role in the instant complaints.

Prior to the 2012 complaint, Complainant regularly provided training to employees nationwide,
including employees under a particular director, in a different region. After Complainant filed his
2012 complaint, that particular director stated she would never use him again, and instructed
employees in her region not to call Complainant for training assistance. Since then, Complainant
has conducted little or no training in that region.

Complaint 1

In July 2014, Complainant learned he was not selected for the position of Equal Opportunity
Specialist Team Leader position, advertised under Vacancy Announcement No. AWP-ACR-14-
BDA8919-35275. Complainant was a licensed attorney and, in 2011, had graduated from the
Executive Leadership Program. In July 2014, Complainant served as the Acting Team Lead for
the EEO Training Institute unit for two days. In October 2014, Complainant graduated from the
Leadership Development Training of the Federal Executive Board.

The Director (Caucasian, white, unknown prior protected activity) was the selecting official for
the Equal Opportunity Specialist.

2 The record reflects that Complainant withdrew two other claims.
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The Director reviewed the applications of eleven candidates, including Complainant and selected
the top two candidates (Caucasian male and female) for an interview. He cited the following
criteria for his selection of the interviewees: proven leadership, character – work-related
references, technical expertise, and willingness to move to Chicago. Complainant was not selected
for an interview. The Director and the Deputy Director interviewed the top two candidates and
checked their references, and made a final selection.

The Director stated that he chose the selectee (Caucasian male) because he was most qualified for
the subject position. The Director explained that the selectee worked for a transit authority “which
is a regulated agency, and I have seen that experience and perspective as something that is
beneficial. The reasons we picked [selectee] over [female candidate] is because he was stronger
in some of the areas listed above. Also, he is an attorney,3 which while was not a requirement, but
is a benefit in the job, and he was experienced working for a regulated recipient. [Female
candidate] worked for TSA, so her experience was limited to screening and the security process,
whereas [selectee] had prior experience in external, Title VII, so he was familiar with the entire
airport operation, which is more relevant.”

Complaint 2

Regarding claim 2, Complainant alleged that on or about August 19, 2015, he learned that he was
again not selected for the position of Equal Opportunity Specialist Team Leader, advertised under
Vacancy Announcement No. AWP-ACR-15-BMN3929-40589. The position required applicants
to have ADA compliance experience at an airport or transit authority.

The Director was the selecting official for the position and reviewed the applications of the four
qualified candidates, including Complainant. Complainant was not selected for an interview. The
Director selected two interviewees (both Caucasian males), from which the selectee was chosen.

The Director stated that the selectee, a licensed attorney, served as an Acting Team Lead for the
ADA program for the Federal Transit Administration and “there was a selective placement factor
requiring a candidate had ADA compliance experience at a transit authority or airport.” The
Director also noted that the selectee’s write up of his Knowledge, Skills and Abilities “was well
done and it indicated someone who was professional.” The Director stated that he did not select
Complainant for the subject position because he was not one of the two strongest candidates. The
Director noted while Complainant was ranked third, he did not select him for an interview “because
Complainant did not have experience as an ADA Team Lead and this is what I was looking for.
He also did not have experience with regard to airport civil rights requirements, although he did
have transit experience.”

Complainant asserted that the Director was only interested in working with white males because
he was not selected for the team lead positions in 2012, 2014 and the current 2015 position.

3 Complainant points out that the selectee graduated from law school, but was not a member of the
bar.
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The Director stated, however, that if Complainant was the best qualified candidate, he would have
hired him.

Based on the evidence developed during the investigation, as described above, the AJ concluded
no discrimination was established. The Agency issued its final order adopting the AJ’s decision.

The instant appeal followed. Complainant, on appeal, argues that the AJ erred finding no
discrimination because the selecting official “lacks candor and truthfulness and a genuine issue of
credibility.”

ANALYSIS AND FINDINGS

As a threshold matter, the Agency, in response to Complainant’s appeal, argues that the instant
appeal was untimely submitted. The Agency merely asserted that the record reflects, without
further elaboration, that Complainant received its final decision on July 3, 2017. Furthermore,
while the record contains a Federal Express Tracking printout indicating that the June 28, 2017
final decision was delivered on July 3, 2017 at Complainant’s former address of record and was
signed by an individual identified as “C.H.,” which was not Complainant. The record also contains
a copy of Complainant’s email dated July 12, 2018, notifying the Agency of his new mailing
address. Therefore, we determine that Complainant filed a timely appeal with this Commission
from the Agency’s final decision dated June 28, 2017.

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. 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 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.

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A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did
not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed
to mask discrimination on any basis alleged. Although it is clear that the Deputy Director, who
was directly involved in the selection process in Complaint 1, was aware of Complainant 2012
EEO complaint, there is simply no evidence that the Deputy Director harbored any retaliatory
animus towards Complainant that impacted the selection process.

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding
no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507.
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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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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

February 5, 2019
Date