Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Feb 11, 2015

0120131670 (E.E.O.C. Feb. 11, 2015)

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

,
Complainant,

v.

Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120131670

Hearing No. 520-2012-00016X

Agency No. 2011-23765-FAA-01

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
February 22, 2013 final Agency decision (FAD) 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. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic
Control Specialist (ATCS) Developmental Trainee in Westbury, New York. Complainant
began ATCS training on June 29, 2010, at the Agency’s Academy in Oklahoma City,
Oklahoma. After completing training, Complainant reported to the New York Terminal Radar
Approach Control on September 7, 2010, to begin ATCS training at an air traffic facility.
Complainant underwent Flight Data training and was eventually certified on November 10,
2010. Complainant then started classroom training on November 29, 2010, conducted by the
ATCS Instructor. The training was rigorous and required comprehension and memorization of
voluminous material.

On December 10, 2010, Complainant learned that he had failed a Standard Operational
Procedures test. Complainant spoke with the Instructor and the Support Manager (SM), and
complained about the Instructor’s training techniques. SM agreed to give Complainant a
second chance to pass the test on December 13, 2010. Complainant took the re-test on
December 13, 2010, but failed once again. On December 14, 2010, Complainant received a
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notice stating that he was being terminated during his probationary period based on his failure
to achieve the required level of satisfactory progression during the classroom phase of the Air
Traffic Control Training Program.

On March 2, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (Indian), national origin (Trinidadian), and
religion1

when, while undergoing Flight Data training from September 28, 2010 to November
10, 2010, he was subjected to a hostile work environment by co-workers, including being
subjected to vulgar comments and various employees reported to him that he was targeted for
failure by several Certified Professional Controllers.
In addition, Complainant alleged that he was discriminated against on the same bases when:

1. From October 25, 2010 through November 5, 2010, he was required to repeat
Flight Data classes;

2. From November 29, 2010 until December 10, 2010, he received inadequate training
from an Instructor; and

3. He was removed during his probationary period from his position of ATCS
Developmental Trainee, effective December 14, 2010.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a hearing, but the AJ assigned to hear the
matter dismissed the hearing request on the grounds that Complainant failed to comply with
her Scheduling Order. As Complainant failed to show good cause for failing to comply with
the AJ’s order, the AJ remanded the complaint to the Agency, which thereafter issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially noted that Complainant’s Flight Data training began on
September 28, 2010, and ended with the Complainant’s certification on November 10, 2010.
Complainant alleged that during this time his co-workers harassed him. Complainant cited no
further incidents of co-worker harassment after he certified in Flight Data training on
November 10, 2010. Complainant initiated EEO counseling contact on January 18, 2011,
more than two months after the last incident of coworker harassment. As a result, the Agency
dismissed Complainant’s co-worker hostile work environment claim pursuant to 29 C.F.R.
§ 1614.107(a)(2) for untimely EEO counselor contact. Likewise, the Agency found that
Complainant’s claim that he was required to re-take Flight Data classes October 25, 2010
through November 5, 2010, was untimely brought to the attention of an EEO counselor.

1 Complainant is a Jehovah's Witness but believed he was perceived as Muslim because of his
last name.
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Next, the Agency determined that, assuming arguendo that Complainant established a prima
facie case of discrimination, management articulated legitimate, nondiscriminatory reasons for
its actions. In particular, as to Complainant’s training, SM stated that she was responsible for
the new ATCSs’ training. SM affirmed that classroom material was presented by the
Instructor, and the material needed to be reviewed constantly by the trainees in order to retain
the information. While he complained about the Instructor’s techniques, Complainant himself
stated that all trainees were impacted by the Instructor’s performance as a trainer. SM noted
that Complainant was required to pass the testing that was standardized and administered for
those in his position. SM confirmed that Complainant could not pass the classroom portion of
the training. He was given additional retake exams, but failed them as well.

Finally, regarding Complainant’s termination, the Acting Manager (M1) stated that
Complainant was terminated after he failed the classroom component of the testing required by
the Agency for all first year ATCS trainees. M1 affirmed that Complainant received refresher
training and was allowed to retake the test, but failed it a second time. M1 maintained that
Complainant struggled with understanding the information necessary to pass the examination
and was provided with help and additional training to assist him. M1 further explained that
Complainant’s testing and training were standard and were the same for any trainee without
regard to his or her background or experience. M1 added that Agency policy and regulations
required that trainees who could not pass the classroom component tests be terminated. Thus,
Complainant was terminated because he did not pass the required examination just as other
trainees had been terminated in the past for not passing the exam.

The Acting Staff Manager (M2) added that Complainant was terminated due to his failure to
successfully complete required training for the position. M2 stated that during the time she
had been employed with the agency other trainees had been terminated for similar reasons as
the Complainant, and that completion of training included passing tests related to that training.
M2 maintained that it was mandatory to pass related tests and trainees who did not do so were
terminated.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
discriminated against as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant first argues that the AJ erred by dismissing his hearing request and
remanding the complaint for a FAD. In addition, Complainant alleges that the ROI was
inadequate. Next, Complainant contends that the Agency erred in dismissing his claims that he
was harassed by his co-workers and forced to re-take training classes. Further, Complainant
argues that his training was inadequate and the Instructor refused to assist when he asked for
additional help. Finally, Complainant contends that he was treated differently because the
Instructor had a preconceived notion about him and did not administer the proper training in
the proper format. Accordingly, Complainant requests that the Commission reverse the FAD.
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ANALYSIS AND FINDINGS
Dismissal of Hearing Request and Adequacy of the Record

At the outset, the Commission shall address Complainant's claims that the AJ erred in
dismissing his hearing request as a sanction and that the investigative record is inadequate.
The Commission notes that AJs have broad discretion in the conduct of hearings, including
discovery, and the determination of whether to admit evidence, issue sanctions or permit or
compel the testimony of witnesses. See

29 C.F.R. § 1614.109. The record reflects that both
parties were notified that failure to follow the orders of the AJ or comply with Commission
regulations may result in sanctions, pursuant to 29 C.F.R. § 1614.109(f)(3). The AJ found,
and the Commission agrees, that Complainant did not fully comply with the AJ’s June 25,
2012 Scheduling Order. Complainant was given the opportunity to show good cause why
sanctions should not be issued against him; however, he failed to demonstrate good cause why
sanctions should not be imposed for his failure to comply with the AJ’s orders. Thus, the
Commission finds that the AJ acted within her discretion to dismiss Complainant's hearing
request. In addition, contrary to Complainant's assertions otherwise, the Commission finds the
EEO investigation to be appropriate and adequate in accordance with 29 C.F.R.
§ 1614.108(b).
Dismissed Claims

EEOC Regulation 29 C.F.R. §1614.107(a)(2) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within 45 calendar
days of an alleged discriminatory event, or the date that the aggrieved person knew or
reasonably should have known of the discriminatory event or personnel action. The
Commission had adopted a “reasonable suspicion” standard (as opposed to a “supportive facts”
standard) to determine when the 45-day limitation period is triggered. See Ball v. U.S. Postal
Serv.

, EEOC Request No. 05880247 (July 6, 1989). Thus, the limitations period is not
triggered until a complainant should have reasonably suspected discrimination, but before all
the facts that would have supported a charge of discrimination have become apparent.
The record reveals that Complainant initiated contact with an EEO Counselor on January 18,
2011. Complainant stated in his formal complaint that he was subjected to co-worker
harassment from September 28, 2010 until November 10, 2010. Therefore, Complainant
knew or should have reasonably suspected discrimination on November 10, 2010, at the latest.
Likewise, Complainant claimed that he was required to retake Flight Data courses from
October 25, 2010 through November 5, 2010. Complainant did not contact an EEO Counselor
within the 45-day limitation period for either of these claims. Complainant has not provided
sufficient justification for extending the time limit. As a result, the Commission AFFIRMS the
Agency's dismissal of these claims for untimely EEO Counselor contact.

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Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983. To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133. 143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine

, 450 U.S. 248, 256 (1981).
The Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, regarding his claim that he received inadequate classroom training, SM
affirmed that Complainant’s classroom training was presented by the Instructor. ROI, at 120.
Trainees were required to constantly review the material in order to retain the information. Id.
M1 stated that Complainant appeared to struggle with understanding the information necessary
to pass the examination and was provided with help and additional training to assist him. Id. at
116. M1 noted that the testing and training was standard and administered in the same manner
for all trainees. Id

.
With respect to his termination, M1 maintained that Complainant was terminated after he failed
the classroom component of the testing required by the Agency for all first-year ATCS
trainees. ROI, at 116. M1 confirmed that Complainant received refresher training and was
allowed to retake the test, but failed it a second time. Id. After failing the second test,
Complainant’s training was suspended due to his performance deficiencies and inability to
achieve the required level of satisfactory progression during the classroom phase of the Air
Traffic Control Training Program. Id

. at 251. As a result, M1 decided to terminate
Complainant’s employment during his probationary period. Id. at 116, 251.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. at 256.
In attempting to establish that the Agency’s reasons are pretextual, Complainant argued that the
Instructor did not administer training in the proper format. Complainant’s statement in his
formal complaint, however, supports that the entire class received the same training, and that
former trainees told him that the Instructor conducted training in the same manner when they
received training. ROI, at 9. SM confirmed that the training was standardized and
Complainant was unable to proceed with the training after failing the initial exam and
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subsequent re-take exam. Id. at 120. In addition, Complainant argued that he was told that he
would be able to re-take the test a third time. M1 confirmed that Complainant was told he
could take the test a third time; however, this was a mistake and would have been against
Agency policy, therefore, he rescinded the re-testing offer. Id

. at 76.
The Commission finds that the record lacks persuasive evidence that Complainant's protected
classes were factors in any of the Agency's actions. At all times, the ultimate burden remains
with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons and that the Agency acted on the basis of discriminatory animus.
Complainant failed to carry this burden. As a result, the Commission finds that Complainant
has not established that he was subjected to discrimination as alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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
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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

Date
February 11, 2015