01A10972
06-19-2002
Madison C. Hamrick, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Madison C. Hamrick v. Department of Transportation
01A10972
June 19, 2002
.
Madison C. Hamrick,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01A10972
Agency No. DOT #4-99-4045
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that in 1993 complainant, a former Professional Air
Traffic Controllers Organization (PATCO) member, applied for rehire as
an Air Traffic Control Specialist (ATCS) with the agency's Minneapolis
Air Route Traffic Control Center (ARTCC) in Minneapolis, Minnesota.
In 1998, the Minneapolis ARTCC created a hiring plan to fill twenty-five
ATCS positions, with thirteen positions set aside specifically for
ex-PATCO applicants. Of the 98 ex-PATCO applicants who were originally
considered, twenty-one finalists were submitted to the selecting official
for the thirteen available positions. Complainant was not one of the
finalists considered for a position. After learning in December, 1998,
that younger ex-PATCO members had been offered positions, complainant
sought EEO counseling and subsequently filed a formal complaint on March
30, 1999. In his complaint complainant alleges that he was discriminated
against on the bases of age (D.O.B. March 9, 1947) and sex (male) when
he was not selected for an ATCS position in 1998.
Complainant's complaint was investigated, along with the complaints of
more than twenty other ex-PATCO applicants who were not selected for
ATCS positions. At the conclusion of the investigation, complainant
was informed of his right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by the
agency. Complainant requested that the agency issue a final decision.<1>
In its FAD, the agency concluded that complainant presented direct
evidence of age discrimination, and that �it is clear that illegal age
considerations tainted the entire selection process.� (FAD, page 20).
Such direct evidence included the selecting officials stating that
longevity with the agency and likely success in training were two
important factors to consider in making their employment selections,
and that age of the applicants was directly related to these factors.
Further, as a result of the focus on these factors, the ages of the
applicants were included on the applicant list prepared for the selecting
officials.
The agency also concluded, however, that it established legitimate
nondiscriminatory reasons for its actions which show that even absent the
illegal age discrimination, it would not have selected complainant for an
ATCS position. Specifically, the agency states in its FAD that several
of the selecting officials remember complainant as being a �troublesome
employee,� and that there was concern regarding complainant's teamwork
problems and his ability to get certified. As to sex discrimination,
the agency concluded that assuming, arguendo, complainant established a
prima facie case, it articulated legitimate nondiscriminatory reasons
for its actions, which complainant failed to show were pretextual.
Namely, that the two female selectees (of the twenty-one selectees in
total), were given positive recommendations by the selecting officials,
and complainant was not.
On appeal, complainant contends that the statements of the selecting
officials are not credible, and that he was a quality employee.
The complainant also reiterates his contentions that he was subject to
age and sex discrimination. The agency requests that we affirm its FAD.
Generally, in disparate treatment cases the allocation of burdens
and order of presentation of proof is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); see also Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (applying
McDonnell Douglas analysis to ADEA claim). The McDonnell Douglas test
is inapplicable, however, where complainant presents direct evidence
of discrimination. TWA v. Thurston, 469 U.S. 111, 121 (1985); see
also Terbovitz v. Fiscal Court of Adair County, Ky., 825 F.2d 111 (6th
Cir. 1987) ("[d]irect evidence of discrimination, if credited by the fact
finder, removes the case from McDonnell Douglas because the plaintiff no
longer needs the inference of discrimination that arises from the prima
facie case [using indirect evidence]"); Siao v. Department of Justice,
EEOC Request No 05950921 (September 12, 1997).
Direct evidence of discrimination may include any action, or any written
or verbal policy or statement made by an agency official that on its
face demonstrates a bias against a protected group and is linked to the
complained of adverse action. Jaakkola v. Department of Commerce, EEOC
Request No. 05950390 (August 29, 1996); see, e.g., Grant v. Hazelett Strip
Casting Corp., 880 F.2d 1564, 1569 (2d Cir. 1989) (direct evidence of age
discrimination found where decision maker said in a memo that he wanted a
"young man ... between 30 and 40 years old" and verbally that he wanted
"a young man and that's what I want and that's what I'm going to have").
Where direct evidence is credited in an ADEA case, the case should be
analyzed pursuant to the "mixed motive" analysis set forth in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989).<2> Under this analysis, the
agency can still avoid liability if it demonstrates by a preponderance
of the evidence that it would have made the same decision even absent
discrimination. See Kubik v. Department of Transportation, EEOC Appeal
No. 10973801 (July 11, 2001); see also Lewis v. YMCA, 208 F.3d 1303
(11th Cir. 2000)(provisions of Civil Rights Act of 1991 limiting impact
of mixed-motive defense do not apply to retaliation claims under ADEA);
Miller v. Cigna Corp., 47 F.3d 586 (3rd Cir. 1995)(substantive provisions
of the Civil Rights Act of 1991 that amended Title VII did not amend
the ADEA); see also Donovan v. Milk Marketing Inc., 243 F.3d 584 (2nd
Cir. 2001); Febres v. Challenger Carribean Corp., 214 F.3d 57 (1st
Cir. 2000); Morgan v. Servicemaster Co., 57 FEP 1423 (N.D. Ill. 1992).
Here, we find that the agency has met its burden in establishing by a
preponderance of the evidence that it would not have selected complainant
for an ATCS position even absent discrimination on the basis of age. See
Price Waterhouse, 490 U.S. at 237. In reaching this conclusion we
note that of the selecting officials aware of complainant's prior work
experience with the agency, all agree in their assessment that he was
known to be a poor or troublesome employee. (Investigative Report, F-13,
page 5; F-14, page 5; F-16, page 7). Moreover, the record establishes
that such personal knowledge of the candidates was given great weight in
the selection process. We are unpersuaded by complainant's contention
that these statements are unworthy of credence. The agency has,
therefore, met its burden under the �mixed motive� analysis.
Turning now to complainant's allegation of sex discrimination, we find
that complainant has failed to establish a prima facie case in that all
but two of the selectees were members of complainant's protected class.
We also find that assuming, arguendo, complainant established a prima
facie case, he has not shown that his qualifications were observably
superior to the two female selectees, who were given excellent
recommendations by all the selecting officials familiar with their work,
including their previous instructors. Therefore, after a careful review
of the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 19, 2002
__________________
Date
1 Twenty of the remaining complainants requested a hearing before an
EEOC Administrative Judge (AJ). The complaints were then consolidated,
and nineteen of the complainants reached settlement with the agency.
At the conclusion of the hearing for the remaining complainant, the AJ
issued a decision, dated September 19, 2000, finding that the agency had
discriminated against the complainant on the basis of age. The agency
then issued a final agency decision accepting the AJ's finding of age
discrimination.
2 This �mixed motive� analysis differs with respect to Title VII claims,
because the Civil Rights Act of 1991 amended Title VII to provide that
where there is direct evidence of discrimination based on race, color,
religion, sex, or national origin, the employer's demonstration that
it was also motivated by a lawful factor does not bar liability, but
rather precludes an award of damages, reinstatement, hiring, promotion,
or back pay remedies. However, the Commission has held that the Civil
Rights Act of 1991 did not amend the ADEA. See Kubik v. Department of
Transportation, EEOC Appeal No. 10973801 (July 11, 2001).