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

Equal Employment Opportunity Commission

Oct 26, 2018

0120171317 (E.E.O.C. Oct. 26, 2018)

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

King D.,1
Complainant,

v.

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

Appeal No. 0120171317

Hearing No. 410-2016-00231X

Agency No. 2015-26088-FAA-03

DECISION

On February 27, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
December 21, 2016, final 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. 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 Aerospace Engineer,
FV-0861-I, at the Agency’s Small Airplane Directorate, Systems and Equipment Branch at the
Atlanta Aircraft Certification Office in Hapeville, Georgia.

On March 31, 2014, Complainant applied to the position into which the Agency eventually hired
him. His application indicated that he rated himself an expert on aircraft designs and related
policies, standards, and procedures concerning these designs. Complainant further stated that he
“possessed outstanding verifiable working knowledge of [Agency] regulations, directives and

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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guidance pertinent to issuance of export airworthiness approvals and conformity[.]” Complainant
extensively discussed his previous experience with an aerospace company as relevant to the
position. The Agency hired Complainant on September 21, 2014. During his probationary period,
Complainant was assigned to work with a Senior Aerospace Engineer (SAE).

Complainant claimed that he inquired about “Process and Procedure and Program Management
Training” in Oklahoma City, but management told him that he was not scheduled for any training
whatsoever. Complainant asked his supervisor (S1) why he was not scheduled, and S1 told him
not to worry about it and to focus on learning the orders and regulations S1 asked him to review.
Complainant alleges he was intentionally left out of training and that S1 refused to approve him
for training.

S1 denied that he refused to provide Complainant training. S1 further denied being aware of any
training called Process, Procedure, and Program Management. S1 also explained that new
employees are automatically enrolled in required training by the directorate training coordinator,
and S1 had no influence over the schedule. S1 provided printouts from the Agency’s internal
website that listed all mandatory training. A review of these printouts does not reflect any training
that resembles a course called “Process, Procedure, and Program Management.”

SAE explained that the facility’s Office Manager (OM) is responsible for monitoring and
scheduling new employee training. SAE also said he is not familiar with any training course called
Process, Procedure, and Program Management.

OM said that the Agency did not deny training to Complainant. Rather, there was a waitlist
depending on when slots were available, and these slots were filled based on the employee’s entry
on duty date. OM expressed her opinion that the Agency did nothing wrong with respect to
Complainant’s training.

Complainant alleged that he thought S1 resented his inquiry into whether he could change his
permanent home address on file to an address that would allow him to receive relocation monetary
benefits. Further, Complainant believed he was the only aerospace engineer singled out in this
way.

S1 responded that he received Complainant’s inquiry about relocation benefits and advised him
that he was not eligible because he lived just inside of 50 miles of the Hapeville facility. However,
S1 advised him to track his daily mileage to see if it differed. Several days later, Complainant told
S1 that he lived in Savannah, Georgia. S1 was concerned because Complainant had never stated
his residence to be anywhere but Dallas, Georgia.

OM stated that Complainant told her he lived in Savannah with his family, but stayed with friends
in Dallas. Complainant had listed Dallas as his residence because he was concerned he would not
get the job if he represented that he lived in Savannah. OM offered to inquire about relocation
benefits and did so. OM concluded that Complainant was not eligible.

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S1 issued Complainant a memo on October 20, 2014, in which he expressed concern that
Complainant gave information about his residence that could be seen as misleading. S1 cautioned
Complainant to “be very careful of the accuracy of this type of information.”

Complainant believed that he was assigned multiple projects and assumed the title of Program
Manager on several projects. Complainant believed that, in the course of completing these
assignments, he was subjected to an unlawful examination, but did not elaborate further.

S1 explained that he gave Complainant an assignment in October 2014, that consisted of reviewing
two certification Orders. S1 reminded Complainant about the assignment in late November 2014.
During the progress review on December 5, 2014, S1 asked Complainant about some of the key
points of the assignment, including the information contained in the certification orders, but it
became clear that Complainant had not done the work.

SAE said that Complainant had difficulty communicating on a field approval assignment. He
assigned the field approval to Complainant to review, and Complainant sent the approval out
before it could be reviewed by SAE or other groups in the Agency. The Agency had to rescind
the approval and correct it. SAE also said that it appeared Complainant did not spend time
reviewing relevant documents. SAE was involved in the December 5, 2014 progress review, and
denied that it was an improper performance review. After that meeting, SAE stated that
Complainant was not where he should have been in his performance. By comparison, one of
Complainant’s co-workers took the time to understand the guidance materials and demonstrated a
good understanding of the materials.

On December 31, 2014, S1 terminated Complainant’s employment. In the termination letter, S1
articulated two bases for his decision to terminate Complainant. S1 stated that Complainant’s
performance was inadequate and that Complainant had two documented instances of misconduct.
Regarding Complainant’s performance, S1 explained that, during a progress review, Complainant
was unable to effectively discuss assignments he had been given several weeks prior. Regarding
Complainant’s conduct, S1 had counseled Complainant for misstating his residency status for the
purpose of inappropriately obtaining relocation assistance benefits. In addition, S1 had counseled
Complainant for being absent without giving S1 prior notice and without approved leave on the
Friday after Thanksgiving.

The record contains a copy of a memo S1 issued to Complainant on December 3, 2014. The memo
explained that Complainant was on leave without approval or submitting a request for approval.
S1 told Complainant that he needed to submit a proper request through the Agency’s timekeeping
system or call the manager to verbally request leave. According to S1, submitting a time and
attendance report is not a substitute for prior approval of leave, and the “office would be
unmanageable without this level of accountability applied equally to all the staff.”

SAE agreed with S1’s decision to terminate Complainant. SAE was concerned over
Complainant’s tendency to act as if he knew the answer when he did not. Further, SAE believed
that this kind of problem could multiply if not addressed.
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Complainant disputed the reasons given for his termination. He maintained that his performance
was adequate, as evidenced by completing projects and being given the title of Program Manager
on several projects. He refuted that he misstated his residency, but merely asked questions about
relocation benefits, and denied that he was absent without approved leave. As to his absence,
Complainant argued that he was confused about how to submit leave requests, and that he had
saved his leave request without submitting it. Complainant denied that he was attempting to steal
leave.

S1 stated that his concern with Complainant’s leave was that Complainant took leave without
approval or notification. S1 added that he terminated Complainant because Complainant’s
background indicated he had a working knowledge of the certification guidance, but S1 received
feedback during Complainant’s probationary period indicating that this was not the case, and S1
confirmed the feedback during Complainant’s progress review. S1 also denied that Complainant
assumed the role of Program Manager at any time. Rather, he was assigned as project manager,
which is “the common title of any engineer who is assigned a project in the office. All of the
engineers in the branch that [S1] manage are project managers.”

On April 10, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment on the bases of race (African-
American), sex (male), and in reprisal for prior protected EEO activity when:

1. He was subjected to inconsistent training and his requests for training were ignored;

2. His supervisor (S1) punished him for asking basic employment questions and
slandered him by deliberately mischaracterizing his inquiries;

3. S1 subjected Complainant to inappropriate evaluation standards; and

4. S1 terminated Complainant’s employment during his probationary period.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing,
but subsequently withdrew his request. Consequently, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency concluded that Complainant did not demonstrate that he was subjected to
a hostile work environment because the alleged incidents were insufficiently severe or pervasive
and there was no evidence of discriminatory or retaliatory animus. Further, the Agency concluded
that Complainant did not demonstrate that he was terminated because of his protected classes
because he failed to rebut the Agency’s legitimate, nondiscriminatory reasons as articulated.
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As a result, the Agency found that Complainant had not been subjected to discrimination, reprisal,
or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the questions S1 asked during his progress review were pre-
formed and presented as a verbal exam. Complainant also appears to argue that his assignment to
study certification orders was no small order and that he completed them to the best of his ability.
Complainant maintains that his coworker’s testimony establishes that he was subjected to a hostile
work environment. Complainant also suggests that S1 made comments shortly after his hire that
indicated that S1 did not really want to hire Complainant. Complainant believes that S1 was
concerned more about having his slot available; if S1 had not hired Complainant before the end of
the fiscal year, he would no longer have Complainant’s slot available. Accordingly, Complainant
requests that the Commission reverse the FAD.

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. (Aug. 5, 2015) (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”).

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially 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). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for
its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct.
2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Complainant may establish a prima facie case of reprisal by showing that he (1) engaged in a
protected activity; (2) the Agency was aware of his protected activity; (3) Complainant was
subjected to adverse treatment by the Agency; and (4) a nexus exist between the protected activity
and the adverse action.
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Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2010). A federal
employee engages in protected activity when he engages in “statutorily protected conduct.”
Walker v. U.S. Dep’t of the Air Force, 518 Fed. Appx. 626, 627 (11th Cir. 2013) (citing Pennington
v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). Complainant must demonstrate that
Complainant alleges that he was subjected to discrimination in retaliation for complaining of
“unfair practices in the workplace.”

Regarding reprisal, the Commission notes that Complainant alleged that his protected activity
consisted of speaking up about unfair practices in the workplace when he asked co-workers about
how he was being treated. The Agency found that there was no evidence that Complainant’s
inquiries expressed his belief that S1’s conduct was based on discriminatory animus. Complainant
provided no further detail. Accordingly, the Commission agrees and finds that Complainant has
not shown that he engaged in prior protected EEO activity. Therefore, Complainant’s claim of
reprisal must fail.

Turning to Complainant’s race and sex-based claims, the Agency, through S1, SME, and OM, has
articulated legitimate, nondiscriminatory reasons for its actions. As to training, OM explained that
Complainant was not denied training, but rather there was no available training at the time he was
hired. OM added that training slots were determined by the employee’s entry on duty date, and
that employees were placed on a waiting list if training was not available. With respect to his
employment questions, Complainant inquired about relocation benefits and revealed that his home
address was not the address he put on his application. S1 explained that he was not disciplining
Complainant at the time, but cautioned him against misstating facts. Regarding evaluation
standards, S1 affirmed, with corroboration from SME, that he met with Complainant to conduct a
progress review, which revealed performance concerns. Finally, as to his termination, S1
explained that he terminated Complainant because, in addition to Complainant’s performance
issues and Complainant having misrepresented his address, Complainant did not notify S1 that he
was taking leave the day after Thanksgiving, in contravention to Agency rules and regulations.

Because the Agency has articulated legitimate, nondiscriminatory reasons for its actions, we
proceed directly to the pretext analysis. U.S. Postal Serv. Bd. of Gov’rs v. Aikens, 460 U.S. 711,
713-14 (1983). Complainant may demonstrate pretext by showing by a preponderance of the
evidence that the Agency’s reasons were motivated by discrimination. Id.; Hernandez v. Dep’t of
Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health & Human
Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).

As Complainant withdrew his request for a hearing, the Commission does not have the benefit of
an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. After a complete review
of the record and Complainant’s arguments, the EEOC affirms the Agency’s final decision.
Complainant has not set forth any argument that demonstrates the Agency’s articulated reasons to
be false or unworthy of belief.
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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. Upon review of the
record, we find insufficient evidence to establish that the Agency’s actions were motivated by
discriminatory animus.

Hostile Work Environment

Complainant alleges that the Agency subjected him to a hostile work environment. To establish a
claim of a hostile work environment, Complainant must show that: (1) he is a member of a
statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the protected class; (4) the
harassment had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. EEOC Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).

In short, to prove his harassment claim, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of a protected basis. Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself.

The Commission notes that Complainant to withdraw his request for a hearing; therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on his protected classes, management officials subjected him to
a hostile work environment. Complainant alleged several incidents of what he believed to be
discriminatory harassment. The Commission finds that Complainant has not shown that he was
subjected to conduct sufficiently severe or pervasive to create a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory animus played
a role in any of the Agency's actions. The record reflects that the alleged incidents were more
likely the result of routine supervision, managerial discipline, and general workplace disputes and
tribulations. Thus, after a review of the record in its entirety, including consideration of
Complainant’s statement on appeal, the Commission cannot find that Complainant was subjected
to a hostile work environment.

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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 (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. 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.
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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

October 26, 2018
Date