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

Equal Employment Opportunity Commission

Apr 12, 2017

0120150700 (E.E.O.C. Apr. 12, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Norbert K.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120150700

Hearing No. 550-2014-00083X

Agency No. DOT-2013-24899-FAA-06

DECISION

On December 8, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s November 7, 2014, final order concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Our review is de novo.
For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Maintenance
Mechanic at the Agency’s Field Maintenance Program, Western Regional Office in Las Vegas,
Nevada.

On May 2, 2013, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the basis of his race (Asian/Filipino) when on February 4, 2013,
his request for access to a government vehicle near his personal residence was denied.

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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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). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision without a hearing on October 15, 2014.

The AJ found that no discrimination occurred. The record reflects that on January 31, 2013,
Complainant signed an Agency “Request and Authorization to Park Government-Owned Motor
Vehicle at or Near Private Residence” form. Complainant was stationed in Las Vegas,
Nevada but resided in Phoenix, Arizona. The AJ noted that Complainant’s position entailed
working at various projects in the western states as part of a Las Vegas-based crew that
transported and operated heavy equipment such as backhoes, bulldozers, and dump trucks.
Complainant’s crew met in Las Vegas on Monday mornings and departed from there to the
location where they were working.

Complainant sought to have a government vehicle made available to him at the Phoenix
airport. According to Complainant, it was inconvenient for him to travel from his residence to
Las Vegas and then to the jobsite, and that instead he could depart from his residence to the
jobsite. Complainant noted on his request form that a coworker based in Las Vegas leaves his
government vehicle in Long Beach, California. Complainant stated that on February 4, 2013,
he was informed by a coworker that the Supervisor had rejected his request.

The AJ stated that Complainant cited the coworker in Long Beach and three other coworkers
who had government vehicles and were of different races than himself. The AJ noted that the
Agency argued in its Motion for Summary Judgment that the Long Beach comparison is not
similarly situated because he was assigned a government vehicle by the Supervisor’s
predecessor. Further, the Agency contended that this comparison employee has ancillary
responsibilities for asbestos emergency hazardous response for all Agency facilities in Southern
California.

The Supervisor asserted that he has assigned government vehicles to only two employees, one
Caucasian and the other an American Indian/Alaska Native. The AJ observed that the latter
employee was assigned a vehicle on October 11, 2011, and that the Supervisor asserted he
issued the vehicle assignment before he was ordered to reduce the number of vehicles used due
to budgetary constraints. The Supervisor stated that the other employee was assigned a vehicle
six months after the denial of Complainant’s request based on this employee’s assignment to
perform site surveys throughout California, and his ability to provide emergency response to
the Battle Mountain radar site in northern Nevada. According to the Supervisor, only the
employee in Long Beach has his government vehicle parked at an Agency facility near his
home. The Supervisor asserted that three of Complainant’s coworkers do not have vehicles
assigned to them.

The AJ observed that the Supervisor asserted that personal convenience is not a sufficient
justification for having an Agency vehicle parked at the Phoenix location. The AJ stated that
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based on an April 25, 2008, memorandum, it is Agency policy that government-provided
home-to-work transportation is only permitted when required for the performance of field work
and such use is advantageous to the Agency. The Supervisor reasoned that given the Agency
mandate to lower vehicle expenses, it was not financially advantageous to the Agency for him
to grant Complainant’s request and there was no operational need for a vehicle in Phoenix.
The AJ noted that the Supervisor added that most employees who have been assigned vehicles
have been with the Agency for many years. In contrast, the Supervisor pointed out that
Complainant was the most junior employee in the Las Vegas Field Maintenance Program. The
Supervisor asserted that Complainant had not developed the skill sets of other employees and
therefore would be the last employee called in an emergency.

The AJ noted a contradiction in the Supervisor’s testimony wherein the Supervisor stated in his
affidavit that he was not aware Complainant requested a vehicle until the informal stage of the
instant complaint. The AJ observed that according to the EEO Counselor, the Supervisor
indicated that he denied Complainant’s vehicle request wherein Complainant stated that his
commute was no longer convenient.

The AJ stated that the ultimate basis for the denial of Complainant’s vehicle request was that it
was for his personal convenience rather than in the interests of the Agency. The AJ noted that
Complainant and his coworkers usually met in Las Vegas and drove with several people in the
same car to their worksites rather than them all departing from their residences and meeting at
the worksite. Further, the AJ recognized that the Agency had been attempting to reduce the
cost of its vehicle fleet and that Complainant’s job duties did not include emergency
responsibilities, unlike some of his comparisons. Additionally, the AJ observed that most of
Complainant’s coworkers who had government vehicles were assigned the vehicles by officials
who preceded the Supervisor.

With regard to the Supervisor’s differing versions of events as to his awareness of
Complainant’s vehicle request, the AJ stated that it was troubling but that the record did not
contain any evidence that reasonably supported an inference that any of the Agency’s actions
were a pretext for discrimination.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that it subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Supervisor’s credibility is in question due to his
conflicting testimony. With regard to the employee who has a government vehicle in Long
Beach, Complainant maintains that asbestos abatement work is no longer being performed yet
this employee is not required to report to the Las Vegas duty station. Complainant also points
to another employee based out of Las Vegas who has a government vehicle and who
Complainant claims should be riding with the employee in Long Beach to save money and
reduce the fleet of vehicles.
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In response, the Agency asserts that the Supervisor did not provide conflicting testimony. The
Agency states that the Supervisor testified that he did not deny Complainant’s request for a
vehicle because he did not see it until after he received the instant complaint. The Agency
points out that the Supervisor testified that if he had received the request, he would have
denied it, in part, because Complainant’s request was based on personal convenience rather
than mission necessity. The Agency argues that even if the employee in Long Beach is no
longer performing asbestos abatement work, he is not a legitimate comparison because a prior
supervisor granted him access to a government vehicle and he performs hazmat work, which
Complainant does not.

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.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally 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, 411 U.S. at 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, 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 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. We shall assume arguendo that Complainant established a prima
facie case of race discrimination. The Agency explained that Complainant was denied a
government vehicle near his personal residence primarily because the Supervisor had been
mandated to reduce the number of vehicles; Complainant’s stated reasons on the sheet he
completed indicated personal convenience, which is not a viable reason; and those who do have
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a vehicle, for the most part, received one prior to the Supervisor’s tenure, have been with the
Agency for a long period of time, and often have job functions that are conducive to having
quick access to a vehicle. We find that the Agency articulated legitimate, nondiscriminatory
reasons for its action.

Complainant seeks to establish pretext by challenging the Supervisor’s credibility and by
pointing out that other Maintenance Mechanics not of his race have been granted government
vehicles. Upon review of the record, it is unclear exactly when the Supervisor first reviewed
Complainant’s request for a government vehicle near his Phoenix residence. However, we do
not consider this issue to be a material fact in determining whether discrimination occurred.
Regardless of when he was made aware of Complainant’s request, the Supervisor’s reasons for
the denial are consistent. The record reveals that the Agency mandated a reduction in the
budget for the Supervisor in response to the budget sequestration. According to the
Supervisor, vehicles were included in the cost reduction and justification needed to be present
from an operational standpoint to have a new assignment of a vehicle. It was Agency policy
that government-provided home-to-work transportation is only permitted when required for the
performance of field work and such use is advantageous to the Agency. The Supervisor
reasoned that given the Agency mandate to lower vehicle expenses, it was not financially
advantageous to the Agency for him to grant Complainant’s request and there was no
operational need for a vehicle in Phoenix. The Supervisor pointed out that Complainant was
the most junior employee in the Las Vegas Field Maintenance Program. The Supervisor
asserted that Complainant had not developed the skill sets of other employees and therefore
would be the last employee called in an emergency.

The Supervisor stated that he had assigned government vehicles to only two employees and that
three of Complainant’s coworkers were not assigned vehicles. The Supervisor asserted he
issued a vehicle assignment on October 11, 2011, before he was ordered to reduce the number
of vehicles used due to budgetary constraints. The Supervisor explained that subsequent to the
denial of Complainant’s request, an employee was assigned a vehicle based on this employee’s
assignment to perform site surveys throughout California, and his ability to provide emergency
response to the Battle Mountain radar site in northern Nevada. With regard to the employee in
Long Beach, although he was allowed to have a government vehicle parked near his home, the
Agency pointed out that this was approved before the Supervisor assumed his position in Las
Vegas and that this employee had hazmat response duties. Upon consideration of the record
and each of the contentions set forth by Complainant, we find that Complainant has failed to
establish that the Agency’s explanation for the denial of Complainant’s vehicle request was
pretext intended to mask discriminatory motivation.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final action, implementing the AJ’s finding that Complainant did not establish
that discrimination occurred.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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

April 12, 2017
Date