[Redacted], Bennett W., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Mar 7, 2023

Appeal No. 2022001551 (E.E.O.C. Mar. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bennett W.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2022001551 Hearing No. 451-2016-00016X Agency No. DOT2013-24897-FAA-05 DECISION On January 26, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as an Air Traffic Control Specialist (ATCS), AT-2152-FH, in San Antonio, Texas. On February 22, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against him based on age (DOB: 1954) and in reprisal for prior EEO activity when: 1. On November 7, 2012, Complainant’s training at Corpus Christi Air Traffic Control Tower was terminated. 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. 2022001551 2 2. In February 2013, Complainant’s request for FMLA leave was partially denied. 3. Effective March 2013, Complainant was reassigned to a lower-paying position at another facility. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing and the AJ subsequently issued a decision by summary judgment concluding no age discrimination or unlawful retaliation was established. When the Agency did not issue a final order within forty days of receipt of the AJ’s decision, the AJ’s summary judgement decision finding no discrimination became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). This appeal followed. ANALYSIS AND FINDINGS 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 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 specifically, 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 has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in factor of Complainant, a reasonable fact-finder could not find for Complainant. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she 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. See McDonnell Douglas, 411 U.S. 2022001551 3 at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory 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). 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, as here, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we determine responsible Agency management articulated legitimate, non-discriminatory reasons for the disputed actions. Claims 1 and 3: Termination of Training and Reassignment In early 2011, Complainant was approved to transfer from the Agency’s Addison, Texas, Air Traffic Control Tower (ATCT) to the Agency’s ATCT in Corpus Christi, Texas, to care for his ill mother in San Antonio, Texas. Because the Addison ATCT was a Level 6 facility at the time, and the Corpus Christi tower was a Level 9, Complainant began training at the Corpus Christi ATCT in February-March 2011, to become certified to work at the Corpus Christi ATCT. The Corpus Christi facility gave each trainee a maximum of 140 hours to achieve certification. The Training Administrator at Corpus Christi (DOB: August 18, 1959) stated that Complainant’s training results were inconsistent and that his level of performance was not meeting training expectations. While he did not directly provide Complainant with his training, he stated he oversees the training program and makes sure that it is running well and equitably. Complainant claimed he received inadequate training which was not in line with the Agency’s customary training procedures. Complainant claimed he was not given the opportunity to experience working with moderate air traffic during the first six months of training, and only received 3.2 hours of between January 2012 and March 2012. He stated that he would have successfully completed training if he had received more moderate air traffic training time. Moreover, Complainant asserted that the other three controllers being trained in Corpus Christi were below 40 years old. 2022001551 4 However, the record shows that Complainant worked 186 sessions of light traffic, 28 sessions of moderate traffic, 3 sessions of heavy traffic. The Training Administrator stated he considered this sufficient training considering Complainant’s experience level, noting Complainant was not a new hire “off the street,” with no experience. Moreover, the Training Administrator stated that on June 21, 2012, Complainant was given an additional 32 hour-extension which was a total of 200 hours of training time allotted to Complainant. Furthermore, the Training Administrator at the time Complainant submitted his FMLA request, Complainant told him that he understood he was not meeting training expectations and was considering retirement. He told Complainant that he was recommending retention and reassignment instead. In January 2012, Complainant was assigned a new supervisor (DOB: November 28. 1970). The supervisor informed Complainant that he recommended suspending his training due to improper phraseology, scanning and application of good judgment. The record reflects that from May 2012 to June 2012, Complainant had 4 of 12 evaluations that did not reflect a “good job.” Then, on July 17, 2021, a trainer had to countermand Complainant’s instruction to the aircraft. The supervisor noted an aircraft separation error by Complainant on his evaluation. The record reflects that because Complainant was unable to satisfactory complete air traffic control training to achieve his certification to work at the Level 9 facility in Corpus Christi, the Training Administrator made the decision to reassign him to a different facility. He determined that because Complainant was still caring for his mother, he elected to transfer Complainant to the Agency’s Waco, Texas, facility because this location is closest to his mother’s residence in San Antonio. We conclude that Complainant failed to prove, by a preponderance of the evidence, that the Agency’s proffered reasons were a pretext masking age discrimination or unlawful retaliation. Complainant does not dispute his performance errors, but instead argues he was not provided with adequate training. However, management disputed that claim, especially in light of Complainant’s prior experience as a controller, and even gave Complainant extra time to successfully complete his training. Beyond Complainant’s bare assertions, there is no evidence to support his claim of age discrimination or unlawful retaliatory animus. Claim 3: FMLA Leave Denial Complainant asserted that he submitted an FMLA request to Training Administrator on February 1, 2013, asking for 12 weeks of leave to take care of his mother. The Training Administrator approved four (4) weeks of Complainant’s FMLA request up to February 22, 2103 (February 23, 2013, was a Sunday). The Training Administrator informed Complainant that he would need to obtain approval from his new manager at the Waco facility for the reminder of the leave. The AJ determined that this matter constituted an improper collateral attack on another adjudicatory process the partial denial of leave under FMLA was within the jurisdiction of the Department of Labor and not the EEO complaint process. 2022001551 5 An employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (September 22, 1994). Here, even if this ruling was not correct, we find that there is no evidence that Complainant’s FMLA leave request was denied or that this matter was motivated in any way by Complainant’s age or by retaliatory animus. The Training Administrator approved Complainant’s FMLA leave for the time Complainant was under his supervision and referred Complainant to his new supervisor in Waco to submit a request for the remainder of the requested leave. There is no evidence that this was not a legitimate and logical decision by the Training Administrator. Upon careful review the evidence of record, as well as the parties’ arguments on appeal, we conclude that Complainant did not prove, by a preponderance of the evidence, did he was discriminated against or subjected to unlawful retaliation by the Agency as alleged. CONCLUSION We AFFIRM the AJ’s summary judgment decision which had become the Agency’s final action. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2022001551 6 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022001551 7 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 March 7, 2023 Date