Monday, January 11, 2016

Can air traffic controller trainee prove pretext for race discrimination?

January 11, 2016
By Mika Shadid Tucker

The 8th Circuit—which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota—recently affirmed a lower court's decision that an employer's stated reason for terminating a minority employee wasn't a pretext, or excuse, for race discrimination.


Xuan Huynh, a Vietnamese American, graduated from the Federal Aviation Administration (FAA) Academy and accepted a position as a trainee air traffic controller at the Minneapolis Air Route Traffic Control Center in 2009. The center is one of 21 "en route" control facilities that guide aircraft flying over the United States.

The center's airspace is divided into six areas based on geography and altitude and then subdivided into six sectors; each sector has both a radar controller and a data controller. Trainees are required to certify at both of those positions in each of the six sectors within their assigned area.

Trainees are allotted 180 training hours at the radar and data controller positions, but they may receive a limited number of additional hours based on the discretion of their trainers. A trainee must complete a "certification skill check" after he completes the training at any given section.

In addition, skill checks are administered monthly to ensure appropriate progression through the program. Evaluations are also used by the training review board and the air traffic manager to assess a trainee's ability to perform the duties of an air traffic controller.

If a trainee performs poorly, he may be suspended. A board will review the trainee's performance and issue a recommendation to the air traffic manager on whether additional training is warranted. If the manager chooses not to provide additional training, the trainee may attempt to transfer to a different center or face termination.

Huynh was assigned to train in Area Six. After each training session, the training team provided him with a performance evaluation that notified him of areas that needed improvement. Huynh reported problems with his first training team and was reassigned to a new training team that included training supervisor Greg Santer and training instructors Todd Martenson and Brian Vance.

Vance and Martenson reported that Huynh was performing poorly for the Sector 27 data controller position and granted him 42 additional training hours above the 180 to allow him to improve. After he completed the additional training, Martenson recommended that Santer certify Huynh at Sector 27 since he and Vance had taken over as his trainers near the end of his allotted hours there. Santer agreed and certified Huynh.

Huynh was then assigned to complete training as a data controller at Sector 38. Vance and Martenson reported that he performed poorly throughout his training and could not apply theoretical knowledge to live situations or adapt to changing air traffic patterns.

Huynh was provided numerous opportunities to improve his skills in training simulations beyond his 180 target hours. Nevertheless, his performance didn't improve. Martenson reported that Huynh didn't have command of basic air traffic control terminology and geography and that he was defensive when trainers brought mistakes to his attention. Training supervisor Santer conducted skill checks to assess Huynh's progress and concluded that his skills were well below what would be expected given his amount of training.

Because of Huynh's poor performance on two different skill checks, Santer recommended that his training be suspended after he completed only 85 of his target 180 hours at Sector 38. Suspension before the completion of the 180 training hours is within the supervisor's discretion, and Kelly Nelson, the air traffic manager, agreed that Huynh should be suspended and evaluated by a review board.

Huynh was the only member of his class suspended for poor performance on a skill check before the completion of his 180 target hours, but he was also the only trainee who had been granted an opportunity to start anew at a different sector after requesting a new training team.

Immediately following his suspension, Huynh attempted to transfer from the center to a lower-level air traffic control facility. There are two different processes for transfer between facilities: an employee request for reassignment (ERR) and an Article 61 transfer.

A trainee may request an ERR transfer to any facility at any time for any reason by sending an application to a receiving facility. If that facility wants to hire the trainee, it will contact his original facility to secure a release. Management at the trainee's original facility isn't typically involved in the ERR process and may not receive notice about a potential transfer until the receiving location calls to request a trainee's release.

A trainee may also transfer through an Article 61 process, which is initiated after the air traffic manager decides to remove the trainee from the program. The air traffic manager may recommend a trainee for an Article 61 transfer at the manager's discretion. Huynh applied for dozens of positions through ERR, but no other facilities offered to hire him. During the same period, he also contested his suspension before the review board.

A three-member review board examined Huynh's training records and interviewed Vance, Martenson, Santer, and Huynh. The board concluded that despite comprehensive training, Huynh had failed to progress. Nelson reviewed the board's recommendation and decided to continue Huynh's training under a new plan: He would receive additional classroom instruction, allowing him another opportunity to learn the basic terminology and geography that he had previously failed to master. He was also given several weeks to study and refresh his learning.

After Huynh completed the classroom retraining, Santer conducted a skill check, determined that he had returned to his prior level of performance, and restarted his on-the-job training as a data controller at Sector 38 under instructors Vance and Martenson. Shortly after Huynh returned, however, he reported problems with his supervisors and classmates.

For instance, Huynh claimed that Santer began belittling and criticizing him. Santer's written training reports indicate that he had informally reprimanded Huynh for sitting idle with his eyes closed during at least one training session and for playing with his cell phone when he should have been studying topics his trainers had repeatedly told him he needed to learn. Huynh claimed that he was on break at the time of those incidents and that the white members of his training class hadn't been similarly reprimanded.

Huynh complained to Patrick Sullivan, the center's operations manager for Areas Five and Six, that Santer had been treating him too harshly. Sullivan spoke with Santer about Huynh's concerns but ultimately informed Huynh that Santer was trying to help him and had counseled him appropriately. Huynh noted that although Sullivan declined to assign him a new training supervisor, he had assigned a new supervisor for a white coworker who had also complained about Santer's training methods.

Huynh also told Sullivan that some coworkers had used racial slurs around him, referred to racial stereotypes, imitated an "Asian accent" in his presence, and put a McDonald's job application in his headset bin at work. Sullivan reported the McDonald's incident immediately to the staff manager, who forwarded it to the FAA's internal accountability board. Sullivan also held a training session on workplace behavior.

Sullivan then attempted to work with Huynh and a union official to accommodate a transfer to a different area within the center, but Huynh chose to remain in Area Six. His performance initially showed signs of improvement after he was given a new training program, but that didn't continue. Vance noted that he still failed to learn basic aircraft characteristics and argued with his instructors.

Santer conducted multiple performance skill checks over the course of Huynh's renewed training and found that he performed routine tasks well but lacked the ability to apply his training in unpredictable or evolving situations. Santer noted more than eight areas in which Huynh's performance was deficient, and he therefore assigned Huynh additional training.

Upon Huynh's completion of 180 training hours as data controller at Sector 38, Santer administered a certification check. Huynh performed poorly in the same areas he had trouble with in his earlier skill checks. Santer recommended training suspension, and a second training review board interviewed Huynh, his union representative, Martenson, Vance, and Santer. After reviewing the written records from Huynh's second round of training, the board concluded that he still lacked basic proficiency in crucial areas.

The board found that Huynh couldn't overcome his deficiencies with additional training and recommended discontinuation of his training. Nelson reviewed the board's recommendation and Huynh's training records before deciding to discontinue his training. Huynh was notified in February 2011 that he would be demoted, reassigned, or separated from the agency. Although he had applied for dozens of transfers to lower-level facilities through the ERR process, none of the facilities had moved to hire him.

Given his impending termination, Huynh requested recommendation letters to facilitate his ERR transfer to a lower-level facility. Sullivan offered to write him a letter for a lower-level position, but not for an air traffic controller position. Santer also declined to recommend him, although he wrote a letter of recommendation for one of Huynh's white classmates who transferred through the ERR process. Recommendation letters are not required for ERR transfers and are not ordinarily part of the ERR process.

Because he was unable to find a facility willing to hire him through the ERR process, Huynh requested that Nelson permit him to begin the Article 61 transfer process. That process may be initiated at an air traffic manager's discretion after suspension of training. After careful review of Huynh's training record, Nelson stated that because countless lives depend on the ability of air traffic controllers to perform their duties, he couldn't in good conscience support transferring Huynh to serve as an air traffic controller at any facility. However, Nelson did initiate the Article 61 transfer process for five of Huynh's white classmates after they failed to certify at the center.

Huynh filed a charge of discrimination against the U.S. Department of Transportation (DOT), which oversees the FAA. In December 2012, he filed a lawsuit in federal district court, alleging that the DOT discriminated against him on the basis of his race when it terminated his employment as a trainee air traffic controller and refused his transfer requests.

The district court concluded that Huynh failed to show that the DOT's stated reason for firing him was a pretext for race discrimination and ruled in favor of the agency. Huynh appealed to the 8th Circuit.

8th Circuit's decision

On appeal, the parties disputed whether Huynh was subject to more than one adverse employment action and whether the nondiscriminatory reason the DOT gave for refusing to transfer him and ultimately firing him—his poor performance—was a pretext for race discrimination.

Both parties agreed that Huynh's termination was an adverse employment action. Huynh argued that Santer's decision to suspend his training after he had completed only 85 of the allotted 180 hours for on-the-job training as a Sector 38 data controller amounted to an additional adverse employment action.

He asserted that the interruption in his training made it impossible for him to perform well after his suspension and complained that none of his white coworkers was suspended before completing the 180 target hours. He also claimed that his instructors subjected him to adverse employment actions by denying him recommendation letters and barring him from participating in as many training simulation exercises as his white classmates.

The court found that Huynh overlooked the fact that not everything that makes an employee unhappy is a discriminatory adverse employment action. Adverse employment actions include termination, demotion, transfers involving changes in pay or working conditions, and negative evaluations used as the basis for other employment actions.

An employer's denial of an employee's request for more training after a suspension is not an adverse employment action. Moreover, the court stated, the undisputed evidence showed that Huynh was offered almost a month of additional classroom instruction and other training after his suspension. He was also given numerous opportunities to engage in training simulations and afforded 42 additional hours of on-the-job training beyond the 180 hours he had received in each of Sectors 27 and 38.

Finally, the court noted that although providing negative references to potential employers can qualify as an adverse employment action, the supervisors' refusal to provide positive recommendation letters for Huynh didn't rise to the level of a material employment disadvantage such as a change in salary, benefits, or responsibilities.

Accordingly, the court concluded that the sole adverse employment action taken against Huynh was his termination from the training program. The only remaining issue was whether Huynh established a genuine dispute about whether the DOT's reasons for firing him and denying him a transfer were pretext for race discrimination.

Huynh argued that racist comments and jokes made by his coworkers, the harsh treatment he received from his supervisors, the discovery of a McDonald's job application in his personal effects at work, and Sullivan's refusal to transfer him to Area 3 all combined to create an inference that the DOT's stated reason for firing him was a pretext for race discrimination.

The court disagreed, noting that occasional insensitive comments like those allegedly made by Huynh's coworkers are "stray remarks" rather than "persuasive evidence of motive when the remarks are made by persons other than a decision maker."

The court found that much of Huynh's evidence included familiar examples of a subordinate employee being subjected to the criticism and control of a supervisor. Although Santer forcefully criticized Huynh for being argumentative and failing to study, his comments didn't contain any reference to race or national origin, nor did they support an inference of discriminatory intent.

The 8th Circuit went on to note that Nelson, Santer, Martenson, and Vance repeatedly gave Huynh second chances and additional instruction when they could have fired him. Therefore, the court concluded he hadn't shown that any of the actions or statements made by his supervisors created a reasonable inference of discrimination because they didn't "suggest discriminatory animus without resorting to speculation."

Finally, Huynh attempted to establish pretext by showing that he was treated differently than other employees who were similarly situated in all relevant respects. He asserted that he was denied a transfer to another facility after he failed to certify, while seven of his white classmates were allowed to transfer even though they had also failed to certify.

At the pretext stage, the court noted, the test for determining whether employees are similarly situated is a rigorous one. According to the court, the "individuals used for comparison must have dealt with the same supervisor, . . . been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances."

Five of the seven putative comparators transferred through the Article 61 process, which had to be initiated by Nelson. Huynh asserted that Nelson treated him differently from other similarly situated white trainees by allowing them to proceed through that process but denying him the same opportunity.

However, the court found that air traffic managers determine whether to initiate the Article 61 process based on written training reports authored by a trainee's immediate supervisors, and all five of the Article 61 transferees identified by Huynh weren't valid comparators because they had different immediate supervisors.

The two remaining comparators transferred through the ERR process, and Huynh admitted that his supervisors didn't control whether a receiving facility would accept such a transfer. The fact that different decision makers are involved in accepting each transfer through the ERR process is "strong evidence of non-comparability," according to the court.

Huynh nevertheless argued that Santer wrote a recommendation letter for one of the two white comparators, who then successfully secured an ERR transfer, but refused to write a similar letter for him.

The court noted that recommendation letters are not required for ERR transfers and are not ordinarily part of the ERR process. Furthermore, Santer's decision to write a letter for one trainee didn't change the fact that each ERR transfer involves different decision makers and Huynh didn't identify coworkers who were similarly situated in all relevant respects.

The 8th Circuit determined that none of the seven employees identified by Huynh were similarly situated to him and he therefore couldn't use them as comparators. Accordingly, he didn't show that the DOT's reason for firing him was a pretext for race discrimination, and the 8th Circuit affirmed the lower court's dismissal of his discrimination claim.

Bottom line

If an employee is given repeated second chances to overcome poor performance and his only evidence of insensitive racial comments points to coworkers (rather than decision makers), he will have a very difficult time proving that the employer's reason for taking adverse employment action against him is pretextual.

Mika Shadid Tucker, an editor of Arkansas Employment Law Letter, can be reached at


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