01974228
06-09-1999
Donald M. Cline, Appellant, v. Hearing No. 380-97-8004X Secretary, Department of Transportation, (Federal Aviation Administration),) Agency.
Donald M. Cline, )
Appellant, )
)
v. ) Appeal No. 01974228
) Agency No. DOT-95-013 Rodney E. Slater, )
Hearing No. 380-97-8004X
Secretary, )
Department of Transportation, )
(Federal Aviation Administration),)
Agency. )
__________________________________)
DECISION
On April 24, 1997, Donald M. Cline (appellant) timely appealed the
final decision of the Department of Transportation, Federal Aviation
Administration (agency), dated March 27, 1997, concluding he had not been
discriminated against in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq., In his complaint, appellant
alleged that agency officials had discriminated against him on the bases
of his race (Caucasian), color (white) and/or national origin (American)
when, in September 1994, he was not selected for the position of Air
Traffic Manager, GM-15, Portland Tower/TRACON, Northwest Mountain Region.
This appeal is accepted in accordance with the provisions of EEOC Order
No. 960.001.
At the time this matter arose, appellant was employed by the agency as
Assistant Air Traffic Manager, GM-14, Portland Tower/TRACON. In 1994,
the agency conducted a nationwide early retirement incentive program
which resulted in over 30 managerial vacancies which needed to be filled,
including the position of Air Traffic Manager, Portland Tower/TRACON.
At the time the positions were announced and applications solicited
nationwide, appellant was serving as the Acting Air Traffic Manager in
Portland. Due to family obligations, appellant limited his promotion bid
to the vacant position in Portland. The selections for the vacancies
nationwide, including the Portland position, were made at a meeting
held in Virginia in September 1994 by regional managers. The evidence
reflects that the meeting began with a speech by the Director of
Air Traffic Services reminding the selecting officials to be mindful
of the agency's diversity goals in making their selection decisions.
Meeting participants were provided with notebooks containing the resumes
of each candidate. There is no evidence that the selecting officials
were provided with any information concerning the race, color, sex
or national origin of the candidates. In the course of the meeting,
the Manager of the Air Traffic Division, Northwest Mountain Region
("the selecting Official") selected a candidate other than appellant
("the selectee") for the Portland manager position.
The selecting official explained that although appellant was
well-qualified for the Portland position, he judged the selectee to
be better qualified. He testified that he had been familiar with the
selectee's work for over twenty years, and knew that he had extensive
experience in higher levels of air traffic control management, especially
during a difficult period in the Los Angeles facility.<1> In particular,
the selecting official was impressed with the selectee's extensive
"hands on" air traffic control experience. Other management officials
corroborated the selecting official's testimony regarding the selectee's
work history and performance.
Appellant, however, asserted that the selectee was chosen because he
was a "diversity" candidate. In support of this theory, he presented
evidence in the form of a taped telephone conversation revealing that
the selecting official, in explaining to appellant why he had not been
selected, told him that "it had nothing to do with your skills or talent"
and later in the conversation revealed that the selectee "has minority
status now...he's a Native American." The agency does not dispute that
this telephone conversation occurred. However, the selecting official
testified that he had always assumed that the selectee was Caucasian by
his physical appearance, and did not learn of the selectee's purported
Native American heritage until after he had made and announced his
selection decision. Other evidence of record corroborates this assertion.
Other management witnesses also claimed that they too had always assumed
the selectee was Caucasian. In addition, at the selection meeting,
records were kept as to which selectees were "minority" or "diversity"
candidates, and the evidence indicates that the selecting official,
upon announcing his decision, did not identify the selectee in these
categories. Moreover, a management witness in attendance at the meeting
said the selecting official was questioned about why he did not select
one of the "diversity" candidates. This same witness said he told the
selecting official later than he thought the selectee might be Native
American. The record never definitively establishes the race/national
origin of the selectee. However, the evidence indicates that although
the selectee told some people within the agency that he was of Native
American heritage, he declined to execute a self-declaration form to claim
status as a Native American, and his selection was finally reported as a
"non-minority" selection.
On November 9, 1994, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against him as
referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On March 12, 1997, following a hearing at which appellant and six
other witnesses testified, the AJ issued a decision from the bench
concluding no discrimination had occurred on any of the bases alleged.
In that decision, the AJ found that although appellant established a
prima facie case of race, color and national origin discrimination, the
agency successfully rebutted that initial inference of discrimination
with its articulation of legitimate, nondiscriminatory reasons for
the decision to choose the selectee for the position in question rather
than appellant. The AJ went on to hold that appellant failed to meet his
burden of proving, by a preponderance of the evidence, that the agency's
articulated reasons for its actions in this matter were unbelievable or
that its actions were more likely motivated by discriminatory factors.
In reaching this conclusion, the AJ considered appellant's evidence
concerning the possibility that the selection was motivated by the
desire to help achieve that agency's "diversity" goals. However,
the AJ concluded that the weight of the evidence established that the
selecting official was not aware of the selectee's possible "minority"
status until after he had made and announced the selection. Therefore,
the AJ held that discriminatory factors could not have been at play in
the decision-making process.
On March 27, 1997, the agency adopted the findings and conclusions of
the AJ and issued a final decision finding no discrimination. It is
from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission finds
that the AJ's recommended decision sets forth the relevant facts and
properly analyzes the case using the appropriate regulations, policies
and laws. Based on the evidence of record, the Commission discerns no
basis to disturb the AJ's finding of no discrimination. Nothing proffered
by appellant on appeal differs significantly from the arguments raised
before, and given full consideration by, the AJ.<2> The Commission
notes that the AJ found the testimony of key management witnesses,
including the selecting official, to be credible. These credibility
determinations of the AJ are entitled to deference due to the AJ's
first-hand knowledge, through personal observation, of the demeanor
and conduct of the witnesses at the hearing. Esquer v. United States
Postal Service, EEOC Request No. 05960096 (September 6, 1996); Willis
v. Department of the Treasury, EEOC Request No. 05900589 (July 26, 1990).
The Commission, after an independent review of the record, found no
significant evidence to contradict the AJ's credibility findings.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision which adopted the AJ's
finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
June 9, 1999
__________________ __________________________________
DATE Carlton M. Hadden, Acting Director
1 The evidence established that the selectee had most recently
been the Air Traffic Manager of the Los Angeles TRACON, but his
position had been eliminated as a result of a consolidation of
facilities in Southern California.
2 On appeal, the Commission notes that appellant claimed the AJ erred in
proceeding with the hearing despite the failure of the agency to produce
a management witness requested by appellant because it claimed he could
not be located due to his retirement. The Commission, having reviewed
appellant's pre-hearing representations concerning the proposed testimony
of this witness, concludes that the AJ did not abuse her discretion in
this matter.