EEOC Appeal 2019005989

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lavonia M.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 2019005989
Agency No. 2016-27076-FAA-05
DECISION
On August 28, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s August 7, 2019 final decision 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.
BACKGROUND
During the period at issue, Complainant was a former Air Traffic Controller Specialist (ATCS)
Trainee at the Agency’s Federal Aviation Administration (FAA) Training Academy, Mike
Monroney Aeronautical Center in Oklahoma City, Oklahoma. Prior to the training, Complainant
held a position in the Agency’s Summer Youth Program, as well as various clerical positions
within FAA.
On September 21, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve
her concerns were unsuccessful.
On December 19, 2016, Complainant filed a formal complaint alleging that the Agency
discriminated against her based on race (African-American) and color (Black) when, on August 6,
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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2016, she learned that another controller trainee (Caucasian), who had experienced similar
computer glitches/issues during training, was reinstated to the FAA Academy, while she was
denied the opportunity. 2
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 EEOC Administrative Judge (AJ).
Complainant initially requested a hearing. 	Complainant, however, subsequently withdrew the
request. The Agency issued the instant final decision on August 7, 2019, pursuant to 29 C.F.R. §
1614.110(b).
In its August 7, 2019 final decision, the Agency dismissed the formal complaint pursuant to 29
C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact and 29 C.F.R. §
1614.107(a)(1), for failure to state a claim. The Agency nevertheless then proceeded to address
the formal complaint on the merits, finding no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
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 complainant to prevail, she
must first establish a prima facie 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. 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. 	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 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,
2 The record reflects that during the investigation, Complainant withdrew the basis of sex. Thus,
we will not address this basis further.

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EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.
On February 10, 2016, Complainant began her ATCS training in a class of 18 trainees. The ATCS
Training Program, throughout the entire course, grades for different portions of the training. The
grades for each section are added-up and averaged out at the end of the course. The initial training
consists of 37 classroom days. 	At the end of 37 days, the trainees’ scores are added-up and
averaged out. During the final 3 days of the 37-day training, the trainees are given the opportunity
to demonstrate what they have learned through a performance assessment. Their scores in those
final three days is more heavily weighted than the previous grades.
The record reflects that Complainant performed satisfactorily during the first 34 days of classes
but did not do well on the last 3-day performance assessment. As a result, she did not receive the
required accumulation of 70 points to pass the course.
Complainant stated that on May 10, 2016, she received a failing score on her evaluation.
Following the May 10, 2016 failing score, she raised her concerns regarding a computer glitch to
the Supervisory ATCS. According to Complainant, the Supervisory ATCS responded that this was
simply how the system worked. Complainant stated that she electronically submitted a request for
a technical review of her points lost. She stated that the review was conducted, but that she was
denied points and terminated from ATCS training effective May 10, 2016.
Complainant stated that the Supervisory ATCS escorted her and another trainee (“Trainee 1”)
(Caucasian) who also failed to pass on the same day and was terminated, off premises.
Complainant noted that Supervisory ATCS took her and Trainee to fill out termination paperwork
and drove them to their cars. She opined that the Supervisory ATCS dropped her off first so that
he could privately advise and reassure Trainee that she would be reinstated to the Academy.
On August 6, 2016, she became aware that Trainee 1 was reinstated to the FAA Academy.
Specifically, Complainant stated that a former classmate told her that the trainee was reinstated
because the Agency found they were at fault for computer glitches during her evaluations. She
stated that she attempted to reach out to the Supervisory ATCS via email on August 6 and 16,
2016, requesting reinstatement with no response.
The Supervisory ATCS (Caucasian) stated that during the relevant period, his responsibilities with
regard to the ATCS trainees was to oversee the Performance Assessment Process (the last three-
day assessment). He explained that Complainant failed to attain a final score of 70.00 or better,
and was mathematically eliminated. The Supervisory ATCS asserted that it was determined that
there were no computer glitches during any of the Performance Assessment scenarios worked on
by Complainant.

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He noted that she filed for a number of Technical Reviews claiming computer glitches that were
evaluated, but it was determined that her scenarios were scored correctly, and no points were
restored. The Supervisory ATCS explained that due to staffing shortages in the Student Service
section, he escorted Complainant and Trainee to the Academy Building/Student Services where
they were read their termination letters and out-processing paperwork was completed.
The Supervisory ATCS stated that on August 17, 2016, he received an email from Complainant
requesting reinstatement and forwarded it to his first-level supervisor, and the supervisor advised
him not to contact Complainant. The Supervisory ATCS stated that he was asked by management
to supply information on Complainant’s Performance Assessment, 	which he supplied.
Furthermore, he stated that he had no role in Complainant’s denial of reinstatement to the Training
Academy.
The Manager, On-Boarding and Placement Team (Caucasian) explained that he made the decision
not to reinstate Complainant. Specifically, he stated that Complainant performed well during the
first 34 days, “but did not do as well on the three-day performance assessment. She did not receive
the required accumulation of points (70) to pass the course.”
The Manager acknowledged that Trainee 1 filed an EEO complaint and it was resolved on July 11,
2016. Specifically, the Manager stated that because of the confidentiality of the ADR process, he
“was unable to discuss the details of the mediation or the details of the resolution of her complaint;
however, I can state that her complaint was not based upon computer glitches/issues.”
Here, Complainant has failed to prove, by a preponderance of the evidence, that management’s
proffered reasons for its actions were a pretext designed to mask the true discriminatory
motivation. In sum, we conclude Complainant failed to establish that her race played any role in
the Agency’s actions.
CONCLUSION
We AFFIRM the Agency’s decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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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.

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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
June 25, 2020
Date