Samuel R., Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.Download PDFEqual Employment Opportunity CommissionJul 21, 20170120152321 (E.E.O.C. Jul. 21, 2017) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Samuel R., Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120152321 Hearing No. 530-2013-00003X Agency No. 2011-24199-FAA-01 DECISION Complainant filed an appeal from an Agency’s final order dated June 3, 2015, finding no discrimination with regard to his 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND In his complaint, filed on November 7, 2011, Complainant alleged discrimination based on race (African American), color (black), and in reprisal for prior EEO activity when effective September 25, 2011, he was administratively reassigned from the position of Aviation Safety Inspector (ASI), FG-1825-13 in the Eastern Region, Pittsburgh Certificate Management Office (CMO) with a duty location in Phoenix, Arizona, to ASI, FG-1825-13 in the Western Pacific Region, in Phoenix, Arizona. The record indicates that at the conclusion of the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On May 27, 2015, the AJ, after a hearing, issued a decision finding no discrimination, which was implemented by the Agency in its final order. 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. 0120152321 2 ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). In this case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory reasons for the reassignment. The AJ noted that from 2008 to 2010, Complainant, an ASI, FG- 13, in the Eastern Region, Pittsburgh CMO, with a duty location in Phoenix, Arizona, was assigned as an Assistant Partial Program Manager (PPM) to the air carrier’s B-757 aircraft. The AJ noted that from June, 2010, to June, 2011, pursuant to a settlement agreement to resolve Complainant’s two prior EEO complaints, Complainant was detailed to the Eastern Region 230 Technical Branch as a Technical Specialist with a duty location in Phoenix, Arizona. At the end of the detail in June, 2011, Complainant, as an ASI, FG-13 returned to his Assistant PPM assignment in the Eastern Region. Sometime in June, 2010, the Professional Aviation Safety Specialists (PASS) Bargaining Unit employees, including Complainant, were notified that: the Mesa Airlines and Freedom Airlines certificates, or airlines, would be transferred from the Agency’s Dallas CMO in the Agency’s Southwest Region to the Phoenix CMO in the Agency’s Western Pacific Region; they may receive directed reassignments to the Mesa Airlines or Freedom Airlines certificates in order to meet operational needs for those operating certificates; and they were encouraged to bid on the positions announced for the Mesa Airlines and Freedom Airlines certificates in Phoenix. Complainant did not request a transfer to one of the newly acquired positions on the Mesa certificate. On September 15, 2011, the Deputy Director, Flight Standards Field Operations, notified Complainant that he was administratively reassigned to work on the Mesa Airlines operating certificate as an ASI, FG-13, in the Western Pacific Region, Phoenix CMO, with a duty location in Phoenix, Arizona, from his ASI, FG-13 position in the Eastern Region, Pittsburgh CMO. Therein, Complainant was also informed that he could accept the reassignment by September 25, 2011, or resign or retire. Complainant accepted the subject administrative reassignment. The AJ stated that the other 16 Phoenix office employees, who were also subjected to the reassignment, submitted employee transfer requests to one of the newly acquired positions on the Mesa 0120152321 3 certificate and were transferred. Complainant and one of his coworkers, a Caucasian female, were the only two employees who did not request a transfer and therefore were administratively reassigned. The AJ stated that if Complainant submitted an employee transfer request, he would not have been administratively reassigned. Based on the foregoing, the AJ determined and we agree that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Specifically, the AJ found the testimony of the Deputy Director, Flight Standards Field Operations, who decided to administratively reassign Complainant, to be credible and supported a lack of any discriminatory motive with regard to the subject reassignment. Also, the AJ found that the Deputy Director did not know about Complainant or his prior EEO activity at the relevant time period at issue. The AJ stated that Complainant failed to show by a preponderance of the evidence that the Agency’s proffered reasons were pretextual. Upon review, we find that the AJ’s factual findings of no discriminatory intent are supported by substantial evidence in the record. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, the Agency’s final order finding no discrimination is AFFIRMED because the AJ’s decision is supported by substantial evidence. 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 0120152321 4 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. 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 July 21, 2017_ Date Copy with citationCopy as parenthetical citation