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

Equal Employment Opportunity Commission

Feb 28, 2017

0120143269 (E.E.O.C. Feb. 28, 2017)

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

Evelyn S.,1
Complainant,

v.

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

Appeal No. 0120143269

Hearing No. 410-2013-00295X

Agency No. 2012-24785-FAA-03

DECISION

Complainant appeals to the Commission from an Equal Employment Opportunity Commission
Administrative Judge (AJ)’s decision, which effectively became the Agency’s final decision
finding no discrimination with regard to her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. See 29 C.F.R. § 1614.109(i). For the following reasons,
we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

The record indicates that Complainant filed her complaint on November 29, 2012, which was
later amended, alleging discrimination based on disability (sleep apnea) and in reprisal for
prior EEO activity when:2

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.
2 The record indicates that although Complainant initially alleged discrimination based on sex
(female) and age (over 40), she subsequently withdrew such bases.
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(1) Effective July 15, 2012, her medical certification was restricted;

(2) On July 24, 2012, while in administrative duty status, she was allegedly directed to
clean out the drawers at the watch desk;

(3) On July 31, 2012, the Operations Manager questioned her in a sarcastic tone about her
filing task and told her that she was taking too long and that her slowness in completing
the task was making him nauseous and sick;

(4) On September 1, 2012, she was issued a Record of Conversation by her supervisor
(S1);

(5) On March 13, 2013, she was reassigned to report directly to the Executive Officer and
the Air Traffic Manager;

(6) On March 13, 2013, she was assigned to the Operations Manager’s watch desk which
she argued was significantly different job responsibilities;

(7) She was prohibited from external work opportunities;

(8) On May 7, 2013, she complained of harassment regarding the Operations Manager; and

(9) She was restricted from SUPCOM attendance after she was medically restricted.

After completion of the investigation of the complaint, Complainant requested a hearing before
the AJ. On September 10, 2014, after a hearing, the AJ issued a decision concluding that the
Agency did not discriminate against Complainant as alleged. The Agency did not issue its
final order and the AJ’s decision effectively became its final Agency decision.3 See 29 C.F.R.
§ 1614.109(i). Complainant filed the instant appeal on September 24, 2014.

ANALYSIS AND FINDINGS

On appeal, it appears that Complainant does not contest the finding of no discrimination with
regard to her reprisal claims (5) – (9). Nevertheless, even if Complainant is contesting these
claims of reprisal, we still find no discrimination for these claims.

Subsequent to the hearing, the AJ asked both parties to submit proposed decisions. The AJ, in
the written decision, clearly found no discrimination in the summary and the conclusion. The
analysis, however, appears to be in large part simply a copy of Complainant’s proposed

3 The Agency argues that Complainant’s appeal is premature. We shall discuss the unusual
nature of the AJ’s decision herein and we find, under the instant circumstances, especially
considering the Agency is also arguing there should be a finding of no discrimination, that the
instant appeal is properly considered in this decision.
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decision submitted to the AJ. Some of the AJ’s analysis, however, seems to be missing
portions. Although the Agency asked the AJ for clarification of the AJ’s decision, the Agency
indicates that no clarification or reason for a lack of a clarification was ever given. The record
reveals no clarification or reason for no clarification by the AJ. Although Complainant argues
that the conclusion in the AJ’s decision was a simple error, we cannot agree with that any more
than we could find that the body of the analysis was a simple error. We might feel differently
if the AJ had provided remedies or an order regarding the determination of remedies. We
might feel differently if the AJ had only said a finding of discrimination in the summary at the
beginning of the decision but found no discrimination at the end of the decision. But none of
those scenarios are before us. What is before us is a decision by the AJ which we simply
cannot determine what the AJ meant. There is, however, a hearing transcript and a fully
developed record, and for purposes of judicial economy we shall issue a decision on the record
before us without considering the AJ’s decision.

The record indicates that during the relevant time period, Complainant was employed by the
Agency’s Federal Aviation Administration (FAA) as a Supervisory Air Traffic Control
Specialist (ATCS) at the Atlanta ARTCC, Hampton, Georgia. Complainant claimed that in
March, 2010, following an automobile accident, she was diagnosed with obstructive sleep
apnea affecting her sleep quality and causing daytime fatigue. Complainant also stated that she
was diagnosed with a chronic neurological disorder disturbing her sleep and causing daytime
sleepiness, lack of energy, lack of concentration, memory lapses, and a depressed mood.
Complainant indicated that on November 24, 2010, her conditions improved and she returned
to her full ATCS duty. The Agency indicated, and Complainant does not dispute, that she and
all ATCSs were required to maintain their medical certificate/clearance to perform safety-
related duties for their ATCS position.

With regard to claim (1), Complainant indicated that her medical certification was restricted
because she was falsely accused of falling asleep during her duties. Specifically,
Complainant’s supervisor (S1) indicated that he was informed by an identified Operations
Manager (M1) that Complainant fell asleep while on duty on July 13, 2012. An identified
ATCS supervisor for Area 6, i.e., Complainant’s coworker, testified that he came to work on
July 13, 2012, and between 10:00 pm to 10:30 pm, he noticed that Complainant, who was
performing Operations Supervisor-in-Charge (OSIC) duties in Area 1, was sitting at the desk,
hands up on the keyboard, slouched over, and her chin was touching her chest. The coworker
(ATCS supervisor) stated he then called her name but she did not respond. The coworker
stated that he then reached over, put his arm over her shoulder, and called her name because
she seemed like she had been asleep. The coworker stated that he shoved her a little bit to
wake her up and he told her to get her stuff, clean out, and go home. The identified ATCS
supervisor testified that he then reported that Complainant had fallen asleep while performing
OSIC duties to his supervisor, M1, who then reported the incident to Complainant’s
supervisor, S1.

Complainant’s Deputy Regional Flight Surgeon indicated that on July 15, 2012, he received a
call from S1 who told him that Complainant had fallen asleep at work and had recently been
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sent home. The Deputy Regional Flight Surgeon stated that he then reviewed Complainant’s
medical documentation dated May 30, 2012, wherein which her doctor indicated she had a
history of obstructive sleep apnea which was treated with a CPAP (Continuous Positive Airway
Pressure). The Deputy Regional Flight Surgeon stated that he believed that Complainant may
have a more serious medical condition than originally thought. The Deputy Regional Flight
Surgeon recommended that Complainant be classified as medically incapacitated and requested
that she contact the Flight Surgeon’s office regarding her condition to further assess her ability
to perform safety-related duties. On appeal, Complainant indicates that the Flight Surgeon
later cleared her to return to duty with special consideration on August 17, 2012. After a
review of the record, we find that Complainant failed to show that there were any similarly
situated employees not in her protected groups who were treated differently under similar
circumstances. Furthermore, we find that the Deputy Regional Flight Surgeon’s actions were
reasonable to provide safety to the flying public.

With regard to claims (2) and (3), M1 indicated that on July 24, 2012, he never asked
Complainant to clean anything; rather, she approached him on the day in question about her
doing administrative work and M1 told her about the files that needed to be organized. M1
stated that Complainant never expressed displeasure about the assignment and on July 27,
2012, she reported to the facility and began working on the files. M1 stated that he was
surprised that it was taking so long to organize one file drawer. M1 stated that on July 30,
2012, he told Complainant that he did not expect her to take this long to organize one file
drawer to which she replied that she was cataloging forms and trying to find electronic
versions on the network and had developed a spreadsheet for which M1 never asked. M1
stated that he told Complainant that July 31, 2012, was the deadline to finish organizing the
file drawer and told her that he could not support spending more hours than that to organize
one file drawer. M1 stated that on August 1, 2012, he checked the drawer which looked as if
no progress had been made in organizing it and M1 ended up organizing the drawer and
finished it in a half workday. M1 denied talking to Complainant in a sarcastic tone or making
a comment as she alleged.

Complainant testified that during the relevant time period, while she was in medically
restricted status, as described in claim (1), she came to work and asked to be on a telephone
conference and to do some of work before the conference call since she did not want to sit in
the office and do nothing. She also testified that when M1 told her about cleaning out and
reorganizing the files, she told M1 “okay, that is great.” There is no indication that
Complainant complained to M1 or she was forced to perform the administrative work at the
relevant time period. After a review of the record, we find that Complainant failed to show
that there were any similarly situated employees not in her protected groups who were treated
differently under similar circumstances or that the M1’s actions were in any way motivated by
discrimination.

With regard to claim (4), S1 indicated that Complainant was issued the Record of Conversation
for falling asleep on duty, as described in claim (1).

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With regard to claims (5) and (6), Complainant claimed that on November 6, 2012, she was
involved in a car accident resulting in severe injuries to her back, arm, and leg. As a result,
she was temporarily, medically incapacitated and she was on medical leave from November 7,
2012, to March 12, 2013. The Agency indicated that Complainant returned to work on March
13, 2013, but she was still medically incapacitated and was not able to perform her safety
related duties of her ATCS position. Complainant does not dispute this. Thus, the Agency
stated that Complainant was assigned to Executive Officer and the Operations Manager’s watch
desk to support the operational needs of the facility, i.e., to answer phones, monitor the
domestic events network, accident investigations, incident investigations, losses and
separations. The Agency indicated that during the relevant time period, the facility did not
have any other administrative duties available to assign Complainant since there were a number
of non-supervisory ATCSs who were also medically incapacitated and thus were assigned to
other administrative tasks. Complainant does not dispute this. Complainant indicated that she
was medically cleared to return to her ATCS position duty on August 12, 2013.

With regard to claim (7), the Agency stated that Complainant’s February, 2013 request to
attend an OPAS SME/SUPCOMM workshop was denied because she was in a sick leave status
and medically incapacitated as a result of her car accident, described earlier in this decision.
The Agency indicated that an identified operational manager was sent for the OPAS because he
was a stronger candidate. Complainant does not proffer any arguments to rebut the Agency’s
legitimate, nondiscriminatory reasons for not selecting Complainant for the foregoing
workshop or any other related work opportunities during the relevant time period.

With regard to claim (8), Complainant indicated that she was subjected to harassment by M1
when: while she was in the hospital following her car accident in November, 2012, M1 visited
her in the hospital and prayed over her; M1 called her twice at home for several weeks after
she returned from the hospital; and her coworker told her that M1 was secretly investigating
her medical condition. However, the record reflects that on November 10, 2012, Complainant
sent an electronic message to management, including M1, indicating that “[t]he calls of
support, prayers, and well wishes are precious to me. It all helps.” The coworker, identified
by Complainant, testified that he did not tell Complainant about M1’s investigating her medical
conditions as she alleged; rather, it was Complainant who pulled him in her office and told him
that management did not believe her medical records and she had a conversation only with M1
about her car accident. On appeal, Complainant does not contest the coworker’s testimony.
With regard to Complainant’s harassment claim, we do not find that the alleged actions were
sufficiently severe or pervasive to alter the conditions of her employment such as to state a
claim of harassment.

With regard to claim (9), the Agency indicated that Complainant’s December, 2012 request to
attend a SUPCOM (Supervisor’s Committee) national officer meeting in Washington, D.C.
was denied because at the time of her request, she was in a sick leave status and medically
incapacitated as a result of her car accident, described earlier. The Agency also stated that
Complainant’s June, 2013 request to attend a SUPCOM national officer’s meeting in
Washington, D.C. was also denied because at the time of the request, she was not medically
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cleared to perform her full range of duties as an operational supervisor. On appeal,
Complainant does not contest this.

In this decision, we will assume Complainant was an individual with a disability. Complainant
does not claim she was denied a reasonable accommodation for her claimed disability and we
find no evidence that she was denied a reasonable accommodation. Complainant does not
claim that she was required to perform duties beyond her medical restrictions. After a review
of the record, we find that Complainant failed to show that there were any similarly situated
employees not in her protected groups who were treated differently under similar
circumstances. Based on the foregoing, we find that Complainant failed to show that the
Agency’s actions were motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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. 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
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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 28, 2017
Date