Complainant,v.Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Feb 27, 2013

0120121522 (E.E.O.C. Feb. 27, 2013)

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

,
Complainant,

v.

Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120121522

Agency No. 2011-23754-FAA-03

DECISION

On February 12, 2012, Complainant filed an appeal from the Agency’s final decision
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Airway
Transportation System Specialist (ATSS)/National Airway Systems (NAS) Specialist (FV-
2101-I), Systems Operations Center (SOC), Atlanta Terminal Radar Control (TRACON),
located in Peachtree City, Georgia. Complainant’s first-level supervisor was the SOC
Manager (Person A), until he retired on January 3, 2011. During the relevant time, Person B
was the NAS Operations Manager ATSS through April 24, 2011. Beginning on April 24,
2011, Person B became Complainant’s supervisor.

Complainant filed an EEO complaint dated Aril 13, 2011, alleging that the Agency
discriminated against him on the bases of age (58) and in reprisal for prior protected EEO
activity when:

Complainant learned on December 30, 2010, that he was denied a temporary promotion
to an ATSS-FV-2101-J position (Operations Manager).

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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 EEOC
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).

To prevail in a disparate treatment claim such as this, a 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its actions. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 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, 134
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy,
EEOC Request No. 05950351 (December 14, 1995).

Complainant alleged that he was denied an opportunity to act within the office as a NAS
Operation Manager (NOM), FV-2101-J. Complainant stated that on occasion, SOC NAS
employees have been temporarily promoted to the NOM position. Complainant noted that in
December 2010, Co-Worker 1 was temporarily promoted into the NOM position.

Person A stated that Complainant was qualified for the position at issue with regard to time-in-
grade requirements. However, Person A stated that Complainant was not selected due to his
poor communication skills and his sharing of information with co-workers. Person A noted
that part of Complainant’s job was to go to other facilities. Person A explained that he did not
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get positive feedback on Complainant from internal and external customers and was told that
Complainant was not “customer friendly.”

The record also contains an interrogatory from Person B who stated Complainant has
continuous issues with verbal communications with both of their customers: Air Traffic
Control and Air Traffic System Specialist. Person B stated that as an NAS or NOM, verbal
communication is an integral part of the job. Person B stated that based on Complainant’s
performance, he felt Complainant’s temporary promotion to an NOM was not justified.

In his rebuttal, Complainant claimed that Person A was lying and that he made up the excuse
of Complainant’s communication problem. Complainant also alleged that Person A must have
told Co-Worker 2, Co-Worker 3, and Co-worker 4 not to communicate with him.
Complainant claims that he has complained to management that these co-workers do not talk to
him. Complainant claimed that he always lets the whole SOC know what is going on in the
office. In addition, Complainant stated that he has more diversity of experience and more
training than Co-Worker 1. Complainant also claimed that his qualifications are the same or
greater than Co-Worker 1.

In the present case, we find the Agency articulated legitimate, non-discriminatory reasons for
its actions. Other than his bare assertion, Complainant failed to produce any evidence that
Person A’s asserted reason for not selecting Complainant for the temporary promotion, his
poor communication skills, was a pretext for discrimination. Moreover, we find that
Complainant failed to show that his qualifications for the position were plainly superior to the
selectee's qualifications. Thus, we find Complainant failed to show by a preponderance of
evidence that the Agency’s actions were based on discriminatory animus.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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
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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
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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

February 27, 2013
Date