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

Equal Employment Opportunity CommissionJul 20, 2017
0120152903 (E.E.O.C. Jul. 20, 2017)

0120152903

07-20-2017

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


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Wes L.,1

Complainant,

v.

Elaine L. Chao,

Secretary,

Department of Transportation

(Federal Aviation Administration),

Agency.

Appeal No. 0120152903

Hearing No. 201123952FAA01

Agency No. 201123952FAA01

DECISION

On September 24, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 18, 2014, final decision 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 (FAD).

ISSUE PRESENTED

Whether the Complainant was discriminated against based on race (African-American) and color (Black) when his Employee Request for Reassignment (ERR), submitted on July 7, 2010, was denied, while two co-workers were selected for vacancies at the Potomac Consolidated Terminal Radar Approach Control facility.

BACKGROUND

In July 2010, Complainant submitted Employee Requested Reassignment (ERR) paperwork to transfer into one of two open positions at the Potomac Consolidated Terminal Radar Approach Control Facility (Potomac facility). His request, if granted, would have been a promotion. At that time, Complainant possessed three (3) years of experience with the Federal Aviation Administration. He attended the FAA Academy, and had worked at the Dulles Air Traffic Control Tower (Dulles facility) for one year and the Manassas Air Traffic Control Tower (Manassas facility) for the two years preceding his application for a transfer to the Potomac facility. He also has an Associate's Degree.

At the time of his request, Complainant was assigned to the Manassas facility. His performance evaluations at the Manassas facility indicated that he "meets requirements of a Certified Professional Controller, successful member of the tower team, works heavy traffic without assistance, and performs controller in charge duties successfully." Complainant failed his only training course while at the Dulles facility.

Complainant stated that around the first week of March 2011, he learned that A-1 (White) and A-2 (White), who had also submitted ERRs for the same position that he sought, had been selected for the Potomac facility. Like Complainant, A- and A-2 worked at the Manassas facility. According to Complainant, he met with his supervisor, S-1, to ask why he was not selected and whether he needed to resubmit his ERR. He claims that S-1 told him not to do anything to "shake things up."

Complainant further alleges that S-1 told him that an African American woman (A-3) applied for a supervisor position at the Dulles facility and that he (S-1) thought she could not make it because she could not handle the traffic. Complainant states that since A-3 is an African American, and because of other racially motivated comments that he has been informed were made (although he personally could not recall any such statements), he interpreted S-1's comment to mean that a black person could not make it at a higher-level facility.

The record indicates that traffic facilities are categorized by a number reflecting their complexity. Higher numbers indicate higher complexity. The Potomac facility is a level 12 radar facility. The Dulles facility is a level 11 facility. The Manassas facility, however, is a level 5 facility.

Complainant suspected that S-1 "advocated" for A-1 and A-2, but no such proof for that speculation was provided by Complainant. A-1 had been with the FAA for twenty-three (23) years. He had satisfactorily worked at 5, 6 and 12 level facilities in the past. His evaluations at the Manassas facility were the same as Complainant's. He had also successfully taken eighteen (18) training courses.

A-2 had been with the FAA for two (2) years. He did not provide an evaluation with his ERR. His ERR did show that he had successfully taken and completed two (2) training courses.

The selecting official for the Potomac facility selections was the Air Traffic Manager of the Potomac facility, S-2. S-2 is an African-American. He ordered a report from S-3 on all employees nationally who submitted ERRs. S-3 visited the Manassas facility, and obtained the ERRs submitted by Complainant, A-1 and A-2.

S-2 personally reviewed all the information on each applicant referred to him, including Complainant. S-2 was unaware of the race or color of any of the applicants. Based on his review, S-2 chose eight individuals, including A-1 and A-2. Two of his eight selections were African-Americans.

S-2 discussed all the submitted ERRS with S-3. With respect to Complainant, S-2 felt the Potomac facility was "a huge leap for an applicant with only three years' experience, a history of 'washing out' of a training, and no radar experience." He added that A-1 was fully qualified and that A-2, deserved the opportunity, based on completing his training courses, "before Complainant could have a second chance in the future."

Complainant, upon learning of the selections and his rejection, believed that he had not been selected because S-1 was bias and likely said something negative about him to S-3. Complainant filed a formal complaint on June 7, 2011.

Complainant provided three examples of alleged racial bias by S-1. According to Complainant, the first situation occurred on February 27, 2011 when S-1 joked, "Oh look, we have a flush now," because Complainant and four (4) other black controllers were in the tower. S-1, according to Complainant, and another employee (race unknown) started laughing, and Complainant said, "That's messed up." S-1 responded, "You're too young to understand that joke," and Complainant states that S-1 and the other employee continued to laugh.

Complainant described a second situation where a co-worker allegedly overheard one side of a telephone conversation involving S-1. Complainant maintained that the co-worker told him that she heard S-1 tell the person to whom he was speaking that Complainant "had too many personal problems."

Finally, Complainant described another occasion where Complainant and another observer "thought" that S-1 was about to use the "N" word during a conversation, but stopped before saying it.

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. Complainant timely requested a hearing, but subsequently withdrew his request. The Administrative Judge remanded the case back to the Agency for a FAD. The Agency issued the FAD pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant did not submit a statement on appeal. The Agency submitted a Brief supporting its FAD.

STANDARD OF REVIEW

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").

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of race and color discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for the selections of A-1 and A-2 for the Potomac facility. Complainant, A-1 and A-2 were all qualified for the positions into which they were seeking transfers. However, A-1 had 23 years of experience, 18 successful training courses and no failed training courses. A-2, had 2 successful training courses, and no failed training courses. S-2, the selecting official, did not know the races of any of the individuals who submitted ERRs for the Potomac facility positions. According to the record, S-2 determined that A-1 and A-2 had records that were superior to Complainant's record. Moreover, there is no evidence that there was any interaction between S-2 and S-1. S-2 received the information he relied upon from S-3. Both S-2 and S-3 believed that the training failure of Complainant adversely distinguished him from A-1 and A-2.

Under the shifting burdens of proof standard, Complainant had to prove that the reasons articulated for the selections of A-1 and A-2 were a pretext for racial and color discrimination. We find that he did not meet his burden of proof. Complainant's evidence of pretext, some of which was observed by Complainant and other aspects of which were hearsay or speculation, only addressed behavior by S-1. Complainant's ERR was forwarded to the Potomac facility by S-1. S-1 had no further role in the selection process. Complainant provided no evidence that S-1 used S-2 as a "cat's paw" to mask discriminatory animus.2 Likewise, Complainant presented no persuasive evidence that his qualifications were observably superior to those of A-1 and A-2.3

Although the joke that S-1, allegedly, made has no place in the work-place, we note that even if true it was unrelated the Potomac selection process. We also note that two (2) of employees selected by S2 for the Potomac facility were African-Americans. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). We find no evidence of unlawful motivation in this case.

CONCLUSION

After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision, because a preponderance of the record evidence does not establish that discrimination occurred based on race or color.

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. 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

_7/20/17_________________

Date

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 term "cat's paw" describes when the discriminatory animus of one employee is transferred through another, who acts as a conduit. See Staub v. Proctor Hospital, 562 U.S. 411 (2011); Jones v. National Security Agency, EEOC Appeal No. 0720110014 (Jul. 19, 2012).

3 The U.S. Supreme Court has addressed the question of comparative qualifications as evidence of pretext and held that, to demonstrate pretext, a complainant must show the disparities in qualifications between the complainant and the selectee are "of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [him] for the job in question." Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006) (Ash I) and the subsequent 11th Circuit decision in Ash v. Tyson Foods, Inc., 190 Fed.Appx. 924, 88 Empl. Prac. Dec. P 42,608 (11th Cir. 2006), cert. denied, 127 S.Ct. 1154 (Jan. 22, 2007) (Ash II); Johnson-Harmon v. Dep't of Veterans Affairs, EEOC Appeal No. 0120081497 (Aug. 27, 2009).

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