0120120041
06-14-2013
David E. Jackson, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
David E. Jackson,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120120041
Agency No. 201023306FAA03
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 22, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Airways Transportation Systems Specialist at the Agency's Communications Unit, Atlanta Air Route Traffic Control Center facility in Hampton, Georgia. Complainant applied for but was not selected for a Supervisory detail position. The District Manager (DM) issued a memorandum requesting that candidates interested in the supervisory detail reply by March 31, 2010. Interested candidates were to submit a brief letter describing their experience, knowledge, skills and abilities relative to: (1) directing the work of subordinate employees, (2) their ability to manage and maintain various communications systems, including but not limited to VSCS, VT-ABS, WAAS, RCF, FCI, STI, BUEC, NADIN and ground communications. Candidates were also required to coordinate their interest in the detail with their managers, who where requested to concur by initialing the letter of interest.
On March 31, 2010, at approximately 11:00 a.m., Complainant sent an email asking his supervisor to initial his letter of interest. Complainant's supervisor told him that he was too busy, and instructed Complainant to forward the package to the DM with a note indicating that he had approved Complainant's letter of interest. Complainant and three other employees submitted letters of interest in response to the DM's memorandum. On or about April 1, 2010, Complainant stated that his supervisor informed him that he was not selected for the position because he had previously served in a supervisory detail. Thereafter, on April 20, 2010, Complainant asked the DM what he could do to advance. According to Complainant, she responded that it did not matter because he would not have been selected for the job. Complainant maintained that she did not give specifics as to why this was so or provide the feedback he requested.
The selectee was a white employee that worked in the Automation Unit. Complainant believed that he was subjected to discrimination because his qualifications were superior to the selectee's, the bid required candidates to be capable of maintaining COMM facilities, a qualification that the selectee lacked. Among other things, Complainant noted that he worked in the COMM unit and had served as an Acting Supervisor in a backfill capacity during periods when the supervisor was absent. He had been trained in nearly all of the communications facilities listed in the solicitation announcement, and he held certifications in VSCS and VTABS. Additionally, he had completed management and supervisory courses and had received supervisory training as part of his participation in ROTC.
On August 25, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African-American) and reprisal for prior protected EEO activity when:
1. On March 31, 2010, his supervisor did not initial his bid package for a Supervisory, IFD/COM Unit F-2I0I-H/I/J temporary detail;
2. On March 31, 2010, he was notified via email that he was not selected for a Supervisory IFD/COM Unit F\'-2101-H/I/J detail assignment;
3. On April 20, 2010, the DM told him that he had no chance of getting the position and he would not have been selected under any circumstance.
Following an investigation by the Agency, Complainant requested a final agency decision (FAD). The FAD found that Complainant failed to demonstrate that he was subjected to discrimination. Specifically, the FAD determined that assuming that Complainant established a prima facie case of race discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that an informal panel reviewed the submitted letters of interest and arrived at a selection. They were looking for someone with the knowledge, experience and ability to manage people. The DM explained that they were strictly guided by the information provided in the March 24, 2010, memorandum and the responses provided in the letters of interest. The DM indicated that even though Complainant's package was not initialed by his supervisor, Complainant sent her an email stating that his supervisor had seen and approved his request as such his package was considered.
Based on the panel's review it was determined that the selectee best described his knowledge, skills, and abilities related to the directing of work of subordinate employees. As compared to Complainant, the selectee's letter was very specific in describing his qualifications, experience and activities. The DM states that the selectee's discussed details in supervisory positions from November 2002 to January 2003, and again from September 2006 to March 2007. Complainant's letter did not describe his experience, knowledge, skills, and abilities as detailed and clearly as the selectee's letter. The DM maintains that the selectee provided specific examples of activities to demonstrate his skills and abilities. She noted that both Complainant and the selectee indicated that they were certified on VSCS and VTABS systems.
Further, the DM denied telling Complainant that "he had no chance of getting the position and would not have been selected under any circumstance." She maintains that she would have never said such a thing. She maintained that after the selection, Complainant asked her for feedback. She told him how the panel went about making the selection, but told him that she could not discuss the other candidates.
The Agency maintained that this was an informal process and Complainant failed to show that his qualifications were observably superior to those of the selectee. According to the supervisor, both were qualified for the position. He explained that both were ATSS, FV-2101-I, and they had both been previously detailed in to the supervisory position; the selectee in 2005 or 2006, and Complainant in 2009. To this end, the supervisor indicated that because they had both acted in the position, fairness dictated that the selectee would be given the next opportunity because his responses were more responsive than Complainant's. The supervisor indicated that no disparity could be inferred from rotating the opportunity.
Further, the Agency maintained that Complainant failed to show that he was subjected to a hostile work environment because even if all the claims were considered together, the incidents were not severe or pervasive enough to establish a hostile work environment. The Agency found that Complainant failed to demonstrate that its articulated legitimate, nondiscriminatory reasons were pretext for discrimination or that Complainant was subjected to a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency violated personnel policy in that the DM was both a participant of the selection panel and the selecting official. He also contends that management provided false testimony under oath, and his supervisor willfully attempted to stop him from competing for the position. Further Complainant maintains that he was better qualified for the position than the selectee due to his experience, previous acting duties, education, and management training. He maintains that the selectee included false information in his letter of interest regarding the certifications that he held. Complainant argues that management should have known that the information was not true. Further, Complainant maintains that the Agency included false documentation regarding the hiring process. He indicates that the forms provided were not used in this case. Finally, Complainant maintains that the Agency's legitimate reason is pretext because they relied on fairness instead of qualifications.
In response, the Agency maintains that its FAD should be affirmed. The Agency argues that this was an informal process and as both Complainant and the selectee were qualified for the position, management selected the selectee because Complainant had acted in the position most recently and because the selectee's letter of interest was more responsive. Finally, the Agency acknowledges that it included in the record documentation that was not used in this selection process, the Agency maintains that it was included to show the kinds of information that could have been asked.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision. We find that if we assume arguendo that Complainant established a prima facie case of race discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its selection decision, and Complainant has not shown pretext. According to the Agency, the selection process was very informal; the selectee's letter was very specific in describing his qualifications, experience and activities, more so than Complainant's; and Complainant had more recently had the opportunity to serve in a supervisory detail. We find that Complainant has not provided persuasive evidence that discriminatory animus played a role in this process. An 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).
We also find no evidence that the supervisor's not signing Complainant's letter resulted in his not be selected or was based on discriminatory animus. Further, the DM denied saying that Complainant would have never gotten the job, and no evidence has been produced that refutes her statement. As we do not have the benefit of an Administrative Judge's findings after a hearing, as Complainant chose a FAD instead, we can only evaluate the facts based on the weight of the evidence presented to us.
Further, with respect to Complainant's claim of harassment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 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
_6/14/13_________________
Date
2
0120120041
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120041