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

Equal Employment Opportunity Commission

Aug 17, 2022

Appeal No. 2021003009 (E.E.O.C. Aug. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darrin H.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2021003009 Agency No. 2020-28708-FAA-03 DECISION On April 27, 2021, 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 November 30, 2021, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 Airway Transportation Systems Specialist at the Agency’s Atlanta Terminal Radar Approach Control Service Operations Center, Systems Support Center in Peachtree City, Georgia. On February 3, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), age (68), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on December 19, 2019, he learned he was not selected for a position (No. ASO-ATO-19-B292-63954) that was announced in his office. 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. 2021003009 2 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. On appeal, Complainant, through counsel, requests that the Commission sanction the Agency with a default judgment for failure to timely investigate the instant complaint. Complainant also continues to argue that his non-selection was due to his applicant score being purposefully lowered. 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 Chap. 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”). Sanctions Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Vet. Aff., EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in “tailoring” a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep't of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007). The agency is required to conduct an impartial and appropriate investigation of the complaint within 180 days of the filing of the complaint unless the parties agree in writing to extend the time period. 2021003009 3 When a complaint has been amended, the agency shall complete its investigation within the earlier of 180 days after the last amendment to the complaint or 360 days after the filing of the original complaint, except that the complainant may request a hearing from an administrative judge on the consolidated complaints any time after 180 days from the date of the first filed complaint. 29 C.F.R. § 1614.106(e)(2). In this case, Complainant filed his formal EEO complaint on February 3, 2020. The 180-day period ended on August 2, 2020. The investigation was performed from October 14, 2020 to November 16, 2020, approximately three months beyond the deadline. Complainant was not provided the Report of Investigation until February 8, 2021. Despite the delay in issuance, we find that the Agency did not act in a manner to warrant sanctions. While the Agency has provided no explanation for the late issuance of the report of investigation, Complainant has not made a showing that he was prejudiced by any Agency delay; that there were any consequences from the delays; or that there were any effects on the integrity of the EEO process. See e.g., Josefina L. v. Soc. Sec. Admin., EEOC Appeal No. 0120142023 (July 19, 2016), req. for recon. den'd., EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency's 571-day delay in issuing a final decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay). Jocelyn R. v. Dep't of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a final decision after approximately 371 days)). Accordingly, under the specific circumstances of this case, we decline to issue sanctions against the Agency for their delays. However, we take this opportunity to remind the Agency of its obligation to comply with Commission regulations in a timely manner. Non-Selection 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 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. 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. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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). For purposes of analysis, we assume Complainant established a prima facie case of discrimination. The Agency determined that the Selecting Official made his selection based solely on the combined bid package review scores, and the interview score. Complainant ranked third out of five on the combined scores. 2021003009 4 Complainant's score was 56.9, the Selectee scored 62.5. The Agency provided legitimate, nondiscriminatory reasons for its action noting that the Selecting Official stated that his decision was not influenced by Complainant's prior first-line supervisor (Former Supervisor). Ultimately, the Agency found the record did not show that Complainant's qualifications plainly exceeded those of the Selectee, and there was no evidence that the processes used conflicted with processes used in other selections. There was no evidence of race, age, or reprisal-based discrimination. Throughout the record, Complainant reported that believed he was the best qualified candidate; he noted his certificates, trainings, and experience as a Systems Specialist in automation, communications, as well as his skills as a technician in automation, telecommunication, communication, NAIVDS2, and environmental systems. Complainant alleged that the Selectee (White, male, over 40) was selected because the Selecting Official was friends with Former Supervisor, who did not like Complainant. Further, on appeal, Complainant argues that his score was lowered to give an advantage to the Selectee, and thus discrimination occurred.3 Despite Complainant's insistence that the Agency discriminated against him by awarding him a lower score, he has provided no evidence which supports this contention. We will not interfere, or second guess personnel decisions made by management officials, absent discriminatory animus. See Burdine, 450 U.S. at 259. Further, it is not sufficient for Complainant to show, without more, that the Agency's decision was an unsound business decision or was unfair. See Patterson v. Dep't of Treasury, EEOC Appeal No. 05950156 (May 9, 1996); Schaeffer v. Dep't of Transp., EEOC Appeal No. 01A0518 (Feb. 14, 2001). Complainant must show that it was discriminatory animus that motivated the Agency to engage in the action that he alleged was unlawful. Complainant has not done so. Based on a thorough review of the record, we find that the final decision correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 2 We note that Complainant did not define “NAIVDS”, and upon review, we were unable to determine the meaning of the acronym. 3 While Complainant cites to other claims he has before the Commission and states that his score was different in those claims, our review finds that those claims do not involve the same vacancy announcement, nor the same underlying facts. For example, in Darrin H. v. Dept. of Transp., EEOC Appeal No. 2020005080 (Jan. 8, 2021), the vacancy announcement number is listed as ASO-ATO-19-B101-61153, which is a different announcement than the one in the current appeal. To the extent that Complainant would like to have those claims considered again, we note that this is not proper. 2021003009 5 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 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). 2021003009 6 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 August 17, 2022 Date