01962669
10-23-1998
Alvin W. Crenshaw, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Alvin W. Crenshaw v. Department of Transportation
01962669
October 23, 1998
Alvin W. Crenshaw, )
Appellant, ) Appeal No. 01962669
) Agency No. 94-0283
v. ) Hearing No. 310-95-5110X
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
INTRODUCTION
On February 26, 1996, Alvin W. Crenshaw (hereinafter referred to as
appellant) filed a timely appeal from the final decision of the Department
of Transportation (Federal Aviation Administration)(hereinafter referred
to as the agency) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et
seq. Appellant received the final agency decision on January 30, 1996.<1>
Accordingly, the appeal is timely filed (see, 29 C.F.R. �1614.402(a))
and is accepted in accordance with EEOC Order No. 960, as amended. For the
reasons that follow, the agency's decision is AFFIRMED in part and VACATED
in part, and the complaint is remanded for a supplemental investigation.
ISSUE PRESENTED
The issues presented in this appeal are (1) whether the record
contains sufficient evidence from which to determine whether the agency
discriminated against appellant based on his race (African-American)
and sex (male), when it failed to select him for a Supervisory Air
Traffic Control Specialist position on January 26, 1994; and (2)
whether appellant has proven by a preponderance of the evidence that
his nonselection was motivated by age (47) discrimination and reprisal
for his prior EEO activity (acting as a collateral duty EEO Counselor
and raising affirmative employment concerns regarding African-American
employees at the facility).
BACKGROUND
Appellant filed a formal complaint dated March 21, 1994 raising the
aforementioned bases and issue. The agency conducted an investigation
and at appellant's request, an administrative hearing was conducted by
an EEOC Administrative Judge (AJ), who issued a Recommended Decision
(RD) finding no discrimination on the bases and issues alleged.
Thereafter, the agency issued a final agency decision (FAD) which adopted
the AJ's RD. It is from this decision that appellant now appeals. Neither
appellant nor the agency submit specific contentions on appeal herein.
ANALYSIS AND FINDINGS
Appellant's claims of disparate treatment based on race, sex, and age
are examined under the tripartite analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973); Loeb v. Textron, Inc.,
600 F.2d 1003 (1st Cir. 1979). Appellant has established a prima facie
case of race, sex and age discrimination with regard to his nonselection
in that he is a member of several protected groups on account of his
race, sex, and age, and he applied and was referred as qualified for
the subject position, yet was not selected in favor of a 36 year old
Hispanic female candidate. See Keyes v. Secretary of the Navy, 853 F.2d
1016, 1023 (1st Cir. 1988).
We find, however, that appellant has not presented a prima facie case
of reprisal. While he demonstrated that the Selecting Official (SO) was
aware of his past duties as a collateral duty EEO counselor and failed
to select him for the subject position, we note that the fact that the
selectee had also performed such duties tends to undermine any such
inference of retaliation. Appellant failed to demonstrate that the SO
was aware prior to his nonselection, of his prior efforts at bringing
the concerns of African-American employees to the attention of agency
management. See Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd., 545 F.2d 222
(1st Cir. 1976).
The SO indicated that he was required to consider the agency's
affirmative employment goals in making the selection. In the matter
before us, however, the record does not contain a copy of any such agency
affirmative employment plan. Nor does the record even contain a copy
of the agency Merit Promotion Policy (MPP) repeatedly referred to by
witnesses as governing the procedures of the subject selection. Because
these documents are absent from the record, appellant has not had a
full and fair opportunity to prove that the agency's plan is invalid
and, therefore, a pretext for race and sex discrimination. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). We
therefore find that the record provided on appeal herein is deficient, and
appellant's complaint on this matter must be remanded for a supplemental
investigation. Elmer Flannery v. Department of Health and Human Services,
EEOC Appeal No. 01914012 (March 9, 1992).
We find, however, based on our review of the record, that it does not
contain persuasive evidence that appellant's nonselection was motivated
by discrimination based on his age or reprisal.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED in part with respect to
the bases of age and reprisal and VACATED with respect to the bases of
sex and race, and the complaint is REMANDED for continued processing. The
agency is directed to comply with the following ORDER.
ORDER (B1092)
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following information:
(A) the agency's specific written affirmative employment plan or program
in force in January 1994 that the Selecting Official considered. The
agency shall indicate whether it is a local or national plan;
(B) any further evidence indicating the extent to which the Selecting
Official made the selection in accordance with the agency's plan or
program;
(C) a copy of the agency's MPP in force at the time of the selection; and
(D) any evidence appellant wishes to present to demonstrate that
the agency's plan is invalid and thus a pretext for race and/or sex
discrimination.
Thereafter, the agency shall issue a final decision. 29 C.F.R.
�1614.110. The supplemental investigation and issuance of the final
decision must be completed within 60 (sixty) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. �2000e-16(c)(Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of the
Court. Filing a request for an attorney does not extend your time in
which to file a civil action. Both the request and the civil action must
be filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
OCT 23, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1As represented by appellant on appeal. The agency has not produced a
certified receipt to verify the date on which appellant received the final
decision.