Complainant,v.Ray H. LaHood, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Mar 20, 2013

0120114115 (E.E.O.C. Mar. 20, 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,
Agency.

Appeal No. 0120114115

Agency No. 2010-23454-FAA-03

DECISION

On September 2, 2011, Complainant filed an appeal from the Agency’s final decision
concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. Our review is de novo. 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 a Secretary at the
Federal Aviation Administration’s District Office in Memphis, Tennessee. Her position was
classified in the 0318 series at payband E. In July 2010, she applied for a Management and
Program Assistant (MPA) position in the 0344 series at payband F, for which she was
qualified. After the vacancy announcement closed, selection certificates at pay band levels, D,
E and F were issued to the Division Manager, to whom Complainant directly reported.

The selection certificate at the “F” pay band level did not include Complainant. The Division
Manager made three selections. After he made the selections, he was transferred, and the
Atlanta District Manager (ADM) assumed his responsibilities.1

After ADM came on board, an
amended certificate of “F” level candidates was issued, and it included Complainant and
another candidate. The Acting Division Manager signed off on her predecessor’s selections
and did not make any selections from the amended certificate.

1 The Division Manager retired soon thereafter.
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When Complainant learned that she had not been selected for the MPA position, she filed an
EEO complaint alleging retaliation. Her prior protected activity was a recent complaint she
had filed against the Division Manager. At the conclusion of the investigation, the Agency
provided Complainant with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). This appeal
followed.

ANALYSIS AND FINDINGS

We shall assume arguendo that Complainant has established a prima facie case of reprisal.
The Agency explained that Complainant was not selected for the MPA position because the
intent of the vacancy announcement for which she applied was to move employees in the 0303
series to the 0344 series. Complainant was in the 0318 series. A second announcement was
issued for those in Complainant’s series that also allowed automatic conversion to the 0344
series, and on April 10, 2011, Complainant was automatically converted to the MPA position
at payband F. We find that the Agency has articulated a legitimate, nondiscriminatory reason
for Complainant’s nonselection.

Complainant attempts to establish pretext by arguing that the Division Manager consistently
expressed opposition to her desire for a promotion. Complainant stated that they had a
horrible relationship and that after she filed her EEO complaint against him, he never spoke to
her again. This argument does not negate the Agency’s position that the vacancy
announcement was supposed to lead to the automatic conversion of those in the 0303 series to
the 0344 series. Complainant also argues that one 0318 employee was converted to the MPA
0344 position under the same vacancy announcement. However, this employee was selected
for payband E. All of the selectees for the MPA 0344-F positions came from the 0303 series.
In light of the fact that Complainant was not on the certificate for consideration at the 0344-F
level until after the Division Manager made his three selections, we cannot attribute her
nonselection to retaliatory motivation. Further, we discern no persuasive argument or
evidence that the ADM acted with retaliatory intent when she made no selections from the
amended certificate. The Agency’s final decision 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:

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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
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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

March 20, 2013
Date