01A14048
10-16-2002
Robert C. Anderson, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Robert C. Anderson v. Department of Transportation
01A14048
October 16, 2002
.
Robert C. Anderson,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01A14048
Agency No. 3-00-372
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of 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 during the relevant time, complainant was employed
as an Air Traffic Control Specialist, FG-2152-12, at the agency's
Air Traffic Division, Gainesville Automated Flight Service Station,
located in Gainesville, Florida. Complainant sought EEO counseling and
subsequently filed a formal complaint on January 29, 2000, alleging that
he was discriminated against on the bases of age (D.O.B. November 11,
1942) and reprisal for prior EEO activity when:
(1) he was not selected for an Operations Supervisor (permanent
assignment), Announcement No. ASO-AAT-99-A172, on January 14, 2000; and
he was not selected for an Operations Supervisor (temporary assignment),
Announcement No. ASO-AAT-00-A193, on June 28, 2000.<1>
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. The agency issued a
FAD finding no discrimination occurred. This appeal followed.
The record reveals the following: On September 1, 1999, the agency
announced a vacant permanent position of Supervisory Air Traffic Control
Specialist, FG-2152-13 (Operations Supervisor), in Gainesville, Florida.
On March 11, 2000, the agency posted another vacancy for the temporary
promotion to Supervisory Air Traffic Control Specialist (Operations
Supervisor), FG-2152-13. Two separate rating panels, with Selecting
Official (SO) on both, were convened to rate and rank candidates for both
positions. Complainant was on the selection list for both positions.
However, complainant was not selected for either position. In regards
to the permanent operations supervisor position, the selectee (S1)
(DOB: January 4, 1954) was not rated as highly as complainant. As to
the temporary operations supervisor position, a selection was not made
and the selection list expired. Eventually, a person (S2) was selected
through a non-competitive process.
In its FAD, the agency concluded that complainant established a
prima facie case of age discrimination and reprisal. Specifically,
in regards to issue (1), complainant applied, and was qualified for
the permanent operations supervisor position. He suffered an adverse
employment action when he was not selected. The selectee was younger
than complainant. The FAD also found that the agency articulated a
legitimate non-discriminatory reason for not selecting complainant;
namely his lack of interpersonal and leadership skills as demonstrated
in two previous temporary assignments as Operations Supervisor.
According to SO, complainant was counseled regarding his shortfalls
in these areas, and offered training or mentoring, but complainant was
adamant that his skills were adequate and did not need to be developed.
In regards to issue (2), the FAD found that the complainant established
a prima facie case of reprisal. Specifically, complainant initiated EEO
counseling in January 2000, which involved the same management officials
as in the case at hand. SO was aware of his prior EEO activities and
the non-selection of complainant occurred a short time after the prior
EEO activity. The FAD, however, found that the agency articulated a
non-discriminatory reason for not selecting the complainant; that the
selectee (S2), who had not had an opportunity to occupy this position in
the past, was chosen for career development purposes whereas complainant
had received such opportunities but had neither performed well nor
subsequently demonstrated improvement in areas where his performance
had been found lacking, such as in interpersonal skills. The FAD found
that on both issues (1) and (2), complainant failed to establish that
management's reasons were pretexts for discrimination.
On appeal, complainant contends that the agency erred in finding
no discrimination and requests that the FAD be reversed. The agency
requests that we affirm its FAD.
As a preliminary matter, we note that the decision on an appeal from
a FAD issued without a hearing, pursuant to 29 C.F.R. �1614.100(b),
shall be based on a de novo review. 29 C.F.R. � 1614.405(a). Under the
ADEA, it is "unlawful for an employer ... to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age." 29 U.S.C. �623(a)(1).
When a complainant alleges that he has been disparately treated by
the employing agency as a result of unlawful age discrimination,
"liability depends on whether the protected trait (under ADEA, age)
actually motivated the employer's decision." Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 141 (2000). Complainant's age
"must have actually played a role in the employer's decision-making
process and had a determinative influence on the outcome." Id.
Regarding complainant's claim of reprisal, the Commission has stated that
adverse actions need not qualify as "ultimate employment actions" or
materially affect the terms and conditions of employment to constitute
retaliation. Lindsey v. United States Postal Serv., EEOC Request
No. 05980410 (Nov. 4, 1999). Instead, a violation will be found if an
employer retaliates against a worker for engaging in protected activity
through threats, harassment in or out of the workplace, or any other
adverse treatment that is reasonably likely to deter protected activity
by that individual or other employees. EEOC Compliance Manual on
Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998).
To prevail in a disparate treatment claim such as these, 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 conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department 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, 120 S.Ct. 2097 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995). In nonselection cases, pretext may be
found where the complainant's qualifications are demonstrably superior
to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
The agency has broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997). Although
complainant was ranked higher in the selection process, received many
accolades from his years in service, and scored 18 points higher than S1
in the numerical ranking of candidates,<2> an employer has even greater
flexibility in filling a management position due to the nature of such
a position. Wren v. Gould, 80 F.2d 493, 502 (6th Cir. 1987). Similarly,
in regards to issue (2), complainant has failed to present evidence that
more likely than not, the agency's articulated reason for nonselection was
pretext for discrimination. Given that the positions were supervisory
in nature, and absent probative evidence of unlawful motivation,
the Commission finds that the complainant has failed to establish
that the agency's reason for nonselection or reprisal was pretext for
discrimination.
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
October 16, 2002
__________________
Date
1 On June 5, 2000, complainant amended his complaint to add issue (2).
2 Factors taken into account included experience, diversity of experience,
performance appraisals and recognitions, participation in committees,
and education and self-development.