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

Equal Employment Opportunity Commission

Mar 14, 2013

0120113782 (E.E.O.C. Mar. 14, 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. 0120113782

Hearing No. 480201000186X

Agency No. 2009-22858-FAA-06

DECISION

Complainant filed an appeal from the Agency’s June 23, 2011 Final Order concerning her
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. For the following reasons, the Commission AFFIRMS the Agency’s Final
Order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Air Traffic
Control Specialist at the Agency’s Southern California Terminal Radar Approach Control
(TRACON),1

in San Diego, California. Complainant filed an EEO complaint on September 8,
2009, alleging that the Agency discriminated against her in reprisal for prior protected EEO
activity when:
1. On July 23, 2009, Complainant was not selected for the position of Traffic
Management Coordinator under vacancy announcement AWT-ATO-0914AJM-
111543; and

2. At the end of July 2009, Complainant was denied the opportunity to compete for
a detail to the Traffic Management Unit.

1 Abbreviated in the record as SCT.
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At the conclusion of the investigation, Complainant was provided a copy of the investigative
file and requested a hearing before an EEOC Administrative Judge (AJ). Upon the motion of
the Agency, the AJ issued a decision without a hearing finding no discrimination.

The AJ concluded that Complainant established a prima facie case of reprisal discrimination
with respect to claim (1). The AJ found that Complainant did not establish a prima facie case
of reprisal discrimination regarding claim (2) because Complainant did not present evidence
that she possessed the necessary qualifications. The AJ further found that Complainant did not
show that the Agency’s reasons for not selecting her for the position identified in claim (1), nor
providing her the opportunity to compete for the temporary position described in claim (2),
were a pretext to mask discrimination. The Agency’s Final Action implemented the AJ’s
decision.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without
holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ
may properly consider issuing a decision without holding a hearing only upon a determination
that the record has been adequately developed for summary disposition. See Petty v. Dep’t of
Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of
one party without holding a hearing unless he or she ensures that the party opposing the ruling
is given: (1) ample notice of the proposal to issue a decision without a hearing, (2) a
comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to
respond to such a statement, and (4) the chance to engage in discovery before responding, if
necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment
“where the [party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing
context, this means that the administrative judge must enable the parties to engage in the
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3
amount of discovery necessary to properly respond to any motion for a decision without a
hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an AJ could order discovery, if
necessary, after receiving an opposition to a motion for a decision without a hearing).

After a careful review of the record, we find that the AJ properly concluded that there was no
genuine issue of material fact that required a hearing. Assuming for the sake of argument that
Complainant established a prima facie case of discrimination for both claims, we find no
indication that the Agency actions were motivated by reprisal for protected EEO activity. The
Agency made its selections in claim (1) based on whether the applicants had experience with
particular facilities (San Diego, Empire, and Burbank). Complainant did not have experience in
those areas and thus was not selected. Similarly, with the detail at issue in claim (2),
Complainant did not have Burbank experience which was necessary for the detail at issue.

CONCLUSION

Therefore, after a review of the record, the Commission AFFIRMS the Agency's Final Order.

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
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4
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

March 14, 2013
Date