0120102998
01-06-2011
Edward P. Malloy, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Edward P. Malloy,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120102998
Hearing No. 520-2008-00008X
Agency No. 2008-21816-FAA-01
DECISION
On July 12, 2010, Complainant filed an appeal from the Agency's June
14, 2010, final decision concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Air Traffic Controller at the Agency's New York Air Route Traffic
Control Center located in Ronkonkoma, New York. The record indicated that
on December 2, 2007, Complainant was involved in a "separation" incident
between two aircrafts classified as a Proximity Event (PE). The next
day, as a result of the PE, Complainant was informed that the PE was
being investigated and that he was relieved from operational duties.
On December 5, 2007, Complainant's second-level supervisor (the Manager)
informed his first-level supervisor that Complainant would not be
immediately returned to operational duties. When Complainant protested
the decision, the Manager explained to Complainant that he had had
two operational errors (OE) in the past year. Complainant disagreed
and stated that he had only one OE and one PE, the December 2 event.
The Manager disagreed and stated that the December 2 event was an OE.
The discussion became more heated. The Manager noted that he expected
more from Complainant as he was a senior training controller and
needed to set the standard for the newer trainees, and was expected
to be a model for acceptable performance at all times. Complainant
responded by making comments under his breath and stated to the Manager,
"you're a fucking asshole." The Manager asked Complainant what he said.
Complainant turned to the Manager and repeated the comment making sure
all around could also hear. The Manager asked that Complainant return
with a union representative. Complainant threw his badge on the floor
and stated, "Fuck you, I quit." Complainant then left the facility.
Complainant was ordered to return to work on December 6, 2007, and was
temporarily given non-controller duties in the Training Department under
Supervisor 2 pending Complainant's return to operational duties.
By notice dated December 13, 2007, the Manager decided to decertify
Complainant from the full performance of his controller. The Notice
indicated that Complainant was involved with a PE involving two
aircrafts caused by both a loss of vertical and longitudinal separation.
The Manager noted that there were only three aircrafts on his frequency
at the time which is lower than normal. Further, the Manager reviewed
the voice recordings and determined that Complainant had numerous
opportunities to prevent this loss but failed to do so in a timely manner.
Based on Complainant's performance, the Manger revoked Complainant's radar
certification at all radar and radar associate positions. His supervisor
was tasked with developing a remedial training plan designed to return
Complainant to his full operational duties. The supervisor issued
Complainant a memorandum dated December 17, 2007, providing him with the
return to duty training plan. Upon completion of the plan, Complainant
was recertified and returned to full controller duties.
During the time he was briefly reassigned to the Training Department,
Complainant requested leave for December 24 and 25, 2007, which was
approved by Supervisor 2. However, once Complainant was on the return
to duty plan as a controller, and no longer working in the Training
Department, the Manager placed Complainant on the schedule for December
24 and 25, 2007, explaining that on the plan he was authorized to work
the non-radar controller positions. As such, the Manager contended
that there was an operational need to Complainant on the dates in
question. Complainant's supervisor called Complainant on December
21, 2007, and informed him of the change in schedule. Complainant
acknowledged receiving the call from the supervisor. However, he did not
report to work. As a result, Complainant was charged with being Absent
Without Official Leave (AWOL) for not reporting for duty on December 24
and 25.
On January 22, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of age (50) and reprisal for
prior protected EEO activity under the Age Discrimination in Employment
Act of 1967 when:
1. On December 14, 2007, Complainant was decertified; and
2. He was charged with AWOL for December 24 and 25, 2007.
Subsequently, on January 29, 2008, Complainant was issued a 14-calendar
day suspension for Inappropriate Remarks and Behavior stemming from
the argument between Complainant and the Manager on December 5, 2007.
The decision on the suspension was issued by the Air Traffic Manager (a
different official from the Manager) based on his review of the incident.
Complainant amended his compliant to include the suspension.
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). Complainant
timely requested a hearing but subsequently withdrew his request.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.
Complainant appealed asserting that the Manager decertified Complainant
because of his age. Complainant argued that the Manager provided evidence
of age bias when he referred to Complainant's seniority. Further,
Complainant asserted that the other events were retaliatory. We note
that in support of his appeal, Complainant provided a typed, unsigned
statement purportedly from his first level supervisor. The Agency
requested that we affirm its decision finding no discrimination.
ANALYSIS AND FINDINGS
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").
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie case 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. 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. Texas Dep't. of Cmty. 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.
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Where the agency has articulated
a legitimate, nondiscriminatory reason for the personnel action at
issue, the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency has provided
legitimate, nondiscriminatory reason for its actions. As to the
decertification, the Manager noted that Complainant should have acted to
avoid the PE but did not. In addition, the Manager cited to the fact that
Complainant also had an earlier OE. Based on his review of the events
of December 2, 2007, the Manager determined that Complainant should be
decertified pending completion of a return to duty (training) plan. As to
the AWOL issue, the record clearly indicated that the Supervisor contacted
Complainant about the change in schedule. Complainant acknowledged the
change in schedule, but did not report to work. As such, Complainant
was charged with AWOL for December 24 and 25, 2007. Finally, as to the
14-day suspension, the Air Traffic Manager investigated the events of
December 5, 2007. Based on his review of Complainant's conduct during
the altercation with the Manager, the Air Traffic Manager determined that
a 14-day suspension was appropriate based on Complainant's undisputed
misconduct.
In order to prevail, Complainant has the burden of establishing, by a
preponderance of the evidence, that the Agency's reasons for its actions
were pretext for discrimination. As to the decertification, Complainant
argued that he was the only employee to be decertified following a PE.
Complainant also pointed to his supervisor's emails indicating that he did
not support the Manager's decision to decertify Complainant.1 Finally,
Complainant claimed that the decertification was based on his age based on
the Manager's reference to Complainant's seniority. Upon review, we are
not persuaded by Complainant. We do not view the Manager's reference to
Complainant's seniority and experience in explaining why he was concerned
with the PE as an indication of animus based on age. Rather, the Manager
indicated that because of Complainant's experience, he should have been
able to avoid the PE situation well before it occurred. The Manager
reviewed the voice recordings and noted that at the time of the PE,
there were only three aircrafts on Complainant's radar. Therefore, he
contended that Complainant should have been able, during a time with a
few aircrafts, to recognize the PE situation and resolve it before the
PE occurred. We do not find that the Manager's reference to seniority
was tantamount to age discrimination and/or unlawful retaliation.
As to the AWOL issue, Complainant claimed that the Manager scheduled
Complainant to work on December 24 and 25, 2007, constituted an act of
retaliation for prior EEO activity. Again, we find Complainant has failed
to meet his burden of proving pretext. Complainant was approved for the
leave while he was temporarily reassigned to the Training Department.
However, the Manager explained that once he was placed on the return to
duty plan, he was returned to non-radar controller duties and there was
an operational need for him on the dates in question. The record showed
that the supervisor called Complainant several days in advance to make
him aware of the change in schedule. Complainant acknowledged that he
was placed on notice that he was scheduled to work on December 24 and
25, 2007. Despite the notice, Complainant did not show up for work.
As such, we conclude that Complainant has not shown that the AWOL charge
was based on his age and/or protected activity rather than his failure
to come to work as directed.
Finally, as to the suspension, we find that Complainant has not shown
that the Air Traffic Manager's reasons for issuing the suspension
were discriminatory. We note that Complainant admitted to the events
that occurred on December 5, 2007. Accordingly, we determine that
Complainant has not shown that the Agency's reasons were pretext for
age discrimination and/or unlawful 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.
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
January 6, 2011
__________________
Date
1 We note that the Commission cannot rely on the alleged affidavit
from the Supervisor provided by Complainant on appeal. We note that
the purported affidavit was typed and not signed by the Supervisor.
The Commission has reviewed the emails provided by Complainant in support
of his claims of discrimination.
??
??
??
??
2
0120102998
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120102998