01961659
10-02-1998
Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
James F. Jarrett v. Department of Transportation
01961659
October 2, 1998
James F. Jarrett,
Appellant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01961659
Agency No. 93-0035
Hearing No. 170-93-8460X
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his allegation that he was discriminated against on the bases
of race (Caucasian), sex (male) and age (born October 12, 1933) when he
was not selected for any one of four System of Advancement and Recognition
(SOAR) positions, 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.
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960.001. For the following reasons, the FAD is AFFIRMED.
At the time of the alleged discriminatory event, appellant was employed as
a Technical Program Manager, GS-14, at the Federal Aviation Administration
(FAA) Technical Center in Atlantic City, New Jersey (TC). Believing that
he was the victim of discrimination, appellant sought EEO counseling
and, thereafter, filed a formal EEO complaint. The agency accepted the
complaint for investigation and complied with all of our procedural and
regulatory prerequisites. Subsequently, appellant requested a hearing
before an EEOC Administrative Judge (AJ), which was held on January 10,
1994. On February 9, 1994, the AJ issued a Recommended Decision (RD)
finding no discrimination. In her RD, the AJ concluded that appellant
failed to establish a prima facie case of discrimination based on
race or age. Specifically, the AJ reasoned that appellant failed to
present sufficient evidence to establish age discrimination. Moreover,
appellant testified that he honestly believed that age had nothing to do
with his nonselection. Concerning race discrimination, the AJ reasoned
that appellant failed to present any evidence that he and the selectees
were members of a different race. The AJ further concluded that,
while appellant established a prima facie case of sex discrimination,
he failed to show that the agency's reasons for not selecting him for any
of the positions amounted to a pretext for discrimination. Thereafter,
the agency adopted the RD and issued a FAD, dated March 8, 1994, finding
no discrimination.
On appeal, the Commission held that the agency had failed to develop
a complete and impartial factual record. See Jarrett v. Department of
Transportation, EEOC Appeal No. 01943000 (July 28, 1995). Specifically,
the agency failed to provide appellant sufficient information concerning
the selectees' objective qualifications, including their SF-171s, their
knowledge, skills and abilities (KSAs) responses and their assessment
panel ratings. Consequently, the March 1994 FAD was vacated and remanded
to the agency for a supplemental investigation to provide appellant
the missing information, as well as copies of the hearing exhibits.
Thereafter, the agency provided appellant information per the Commission
decision and issued another FAD, again finding no discrimination.
It is from this second agency decision that appellant now appeals.
On appeal, appellant asserts, among other things, that it was the policy
of the selecting official (SO) to discriminate against white males in
selections.
The investigative record reveals that at the time the SO assumed his
duties as director of the TC, no women were employed at the GS-15 level.
SOAR was created to encourage women and minority individuals to apply
for GS-15 level positions. However, the SOAR program was completely
open to all qualified agency employees. Appellant had significant
experience in the computer field that made him fully qualified for
all four positions. Appellant made the best qualified (BQ) list for
the positions. All candidates that made the BQ list were interviewed
by an assessment panel (panel) in Washington, D.C. The selections were
primarily made on the basis of the panel interviews and interviews with
the supervisors of the individual positions. In the panel interviews,
candidates role-played as managers who were required to present a
briefing based on material provided to them prior to the interview.
The record further reflects that appellant did not perform well before
the panel. In fact, one member of the panel credibly testified that
appellant presented his application material in a "matter of fact"
or "blas�" fashion. This testimony was not rebutted by appellant.
Appellant was not recommended for any of the positions and his position
bid package was not forwarded to the SO. Four women were selected for
the positions. Appellant failed to present information concerning the
race or age of any of the selectees.
After careful review of the entire record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, the Commission finds that the agency's FAD
sets forth the relevant facts, and properly analyzes the appropriate
regulations, policies and laws. The Commission discerns no basis to
disturb the agency's finding. Additionally, we note that the AJ's
conclusions, which were relied on by the agency in the instant FAD,
were not disturbed by any information gleaned after development of the
complete factual record.
Finally, with respect to appellant's contention on appeal that the
selections were made pursuant to a policy of discrimination against white
males, we disagree. We conclude that although the SO was aware of the
absence of females at the GS-15 level, he based the selections on the
qualifications of the selectees and the recommendations of the panel.
Appellant failed to present any evidence to show that the selectees were
chosen based on any unlawful bias. The record establishes that the agency
followed established procedures in its hiring and selection processes,
and appellant has not shown that his qualifications were superior
to any of the selectees. Bauer v. Bailer, 647 F.2d 1037, 1048 (10th
Cir. 1981). The record further establishes that the SOAR program was
only an initial step to encourage female application for GS-15 positions.
Appellant failed to rebut the agency's explanation that he did not do
well before the panel and, therefore, was not recommended to the SO.
Nor has appellant shown that the agency's failure to select him was
more likely motivated by discrimination based on race, sex or age.
Texas Department of Community Affairs v. Burdine, 450 U.S. at 256.
Finally, the record shows, as the AJ concluded, that the selectees were
as qualified as appellant for the position, if not better qualified
than appellant. Accordingly, the FAD is AFFIRMED.
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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 2, 1998
______________ ____________________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations