0120140718
04-03-2014
Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120140718
Agency No. DOT-2013-25005-FAA-03
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 20, 2013 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Air Traffic Controller at the Agency's Denver Air Route Traffic Control Center in Longmont, Colorado.
On April 2, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the basis of age (over 40) when:
on February 7, 2013, he learned that he was not selected for the Operations Supervisor (AT-2152-J) position at the Charlotte, North Carolina Air Traffic Control Tower Center advertised under Vacancy Announcement No. ASO-ATO-13-A086-29343.
After the investigation of the claim, 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). In accordance with Complainant's request, the Agency issued a final decision on November 20, 2013, pursuant to 29 C.F.R. � 1614.110(b).
The Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency reasoned that "the Certificate of Eligibles for Vacancy Announcement ASO-ATO-A-086-29343 was returned to Human Resources with no selection made."
The Agency nevertheless addressed the instant formal complaint on the merits, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of age discrimination because the selecting official did not select anyone for the subject position and did not know Complainant's age at the time of the selection process. The Agency further found that even if Complainant established a prima facie case of age discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions.
The former Acting Air Traffic Manager of the Charlotte Air Traffic Control Tower was the selecting official for the subject position. The selecting official further stated that there were no selections made because "we did not have a candidate for the position who had the ideal background, experiences, and recommendations that we were looking for."
Further, the selecting official stated at that time he did not know Complainant. The selecting official stated that a review of Complainant's application package indicated that he worked at the Denver Air Route Traffic Control Center and "had some relevant experience with radar or tower in Phoenix, [Arizona], but that was a few years back. The Complainant did not have the background I was hoping our most qualified applicants would have, high level Tower and high level TRACON experience [emphasis in its original]." Moreover, the selecting official stated that Complainant's age was not a factor in his decision not to make a selection for the subject position.
The Operations Manager, Charlotte Douglas Airport stated that his role in the selection process was to get information on prospective employees "especially the ones seeking to move into management. I received input on approximately fifteen prospective employees including [Complainant]." The Operations Manager further stated "we needed someone with high volume terminal environment experience. By that, I mean we needed someone who, within the last five years, had worked in that environment. By high volume, we mean someone who worked with large numbers of aircraft coming and going...Charlotte is the sixth busiest airport in the nation."
Further, the Operations Manager stated that he did not fell that Complainant's experience was satisfactory for the subject position. Specifically, the Operations Manager stated that the experience that Complainant "has has an air traffic controller in Denver is not quite the same thing. Complainant works the en-route option and did not have recent terminal experience to be a manager at this facility. He did have experience with high volume traffic in Phoenix, but that was quite a while back."
The instant appeal followed. Complainant, on appeal, argues that a separate vacancy announcement for the same Operations Supervisor position at the Charlotte Air Traffic Control Tower "opened on February 28, 2013. In effect, the agency deliberately did not make a decision to fill the position so as to create a larger applicant pool to choose from excluding me from selection. The [Agency's] actions are no different than canceling a vacancy announcement and then opening a new bid."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The selecting official in this case articulated legitimate, nondiscriminatory reasons for his decision not to make a selection for the subject position because the applicants did not have the terminal experience that the Charlotte facility sought. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful age discrimination. Complainant argues on appeal that the Agency cancelled the vacancy announcement in order to create a larger pool of applicants to exclude him from selection. However, beyond his bare assertion, he has not provided any evidence to challenge management's testimony that the announcement was cancelled because it did not attract sufficient candidates with the qualifications sought.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 3, 2014
__________________
Date
1 Because we affirm the Agency's finding of no discrimination for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. failure to state a claim).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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