0120063988
05-22-2008
Janet L. West, Complainant, v. Mary E. Peters, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Janet L. West,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01200639881
Hearing Nos. 310-2006-00079X, 310-2006-00093X,
310-2006-00097X
Agency No. 2005-19692-FAA-05
DECISION
On June 19, 2006, complainant filed an appeal from the agency's May 24,
2006, final order concerning her equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). 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 a Material Handler, FW-6907-06, at the agency's Logistics Center,
Inventory Branch, Mike Monroney Aeronautical Center in Oklahoma City,
Oklahoma. The record reflects that in December 2004, the agency issued
Vacancy Announcement No. AAC-BLR-05-AML1000-76586 for the position of
Packer, FW-7002-07. Complainant applied for the position. The Human
Resources Office (HRO) reviewed the applications, and referred thirty
candidates to the selection official (SO1), the Supervisor of Packing
and Crating. A selection panel of three employees interviewed the
referred candidates and scored their answers to five different questions.
SO1 indicated in the record that the interview questions were suggested
by the HRO. SO1 reviewed the panel's interview scores and made two
selections (both 37 years old) for the Packer position.
In January 2005, the agency issued Vacancy Announcement
No. AAC-AML-05-1000-76910 for the position of Materials Examiner
and Identifier, FW-6912-07. Complainant applied for the position.
The HRO reviewed the applications and referred twenty-five candidates
to the selection official (SO2), the Branch Supervisor of AML-1020.
A selection panel of three employees interviewed the referred candidates
and scored their answers to five different questions. SO2 reviewed the
panel's interview scores and spoke with the supervisors of the seven
candidates who had received the highest scores. SO2 made two selections
(41 and 27 years old) for the Materials Examiner and Identifier position.
On June 14, 2005, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of age (58 years old) when:
(1) Complainant was not selected for the position of Packer, FW-7,
advertised under Vacancy Announcement No. AAC-BLR-05-AML1000-76586; and
(2) Complainant was not selected for the position of Materials
Examiner and Identifier, FW-7, advertised under Vacancy Announcement
No. AAC-AML-05-1000-76910.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on April 12, 2006 and
issued a decision on April 28, 2006. Specifically, the AJ found
that complainant failed to establish that the agency's legitimate,
nondiscriminatory reasons for not selecting her were a pretext for
unlawful age discrimination.2 The agency issued a final order adopting
the AJ's finding that complainant failed to prove that she was subjected
to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant, through her representative, argues that the agency
erred in finding no discrimination. Complainant argues that the selectees
chosen for the two vacancies were "pre-selected" employees. In response,
the agency urges the Commission to affirm its final decision.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Service Board
of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
We concur with the AJ's determination that the agency articulated
legitimate, nondiscriminatory reasons for its actions. With respect
to claim (1), SO1 testified that he made his selections based on the
interview panel's scores. SO1 further testified that he selected two of
the highest scoring candidates for the Packer position, and complainant's
score was not high enough for selection.3 Regarding claim (2), the
selection official (SO2) testified that he considered the interview
scores, the top seven scoring candidates' applications, and input
from the top candidates' supervisors before making his selections.
SO2 indicated that he did not consider complainant for the position
because she did not have a high enough score.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext
for discrimination. Complainant can do this directly by showing that
the agency's proferred explanation is unworthy of credence. Burdine,
450 U.S. at 256. We find that the AJ's determination that complainant
failed to establish pretext is supported by substantial evidence in
the record. Upon review, we find that complainant has not shown that
her qualifications for the positions were so plainly superior to that
of the selectees to warrant a finding of pretext. Moreover, we find
that the record is devoid of any evidence that the agency's actions
were motivated by discriminatory animus towards complainant's age.
We note that SO1 testified that he had no knowledge of the selectees'
ages when he made his selections, and SO2 testified that he was unaware
that the selectees for the Materials Examiner and Identifier positions
were younger than complainant.
CONCLUSION
The Commission finds that the AJ's factual findings are supported by
substantial evidence in the record and that her decision referenced the
appropriate regulations, policies, and laws. We discern no basis to
disturb the AJ's decision. Accordingly, after a careful review of the
record, including complainant's contentions on appeal and arguments and
evidence not specifically addressed in the decision, the agency's final
order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 22, 2008
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
2 The AJ consolidated complaints from three different complainants
regarding the agency's selections for the two vacancy announcements
and issued a joint decision finding no discrimination in all three
complaints.
3 SO1 confirmed at the hearing that two candidates scored higher than
one of the selectees for the Packer position. However, one of those
two candidates (57 years old) was not selected because he was selected
for another position within the agency. SO1 could not recall why the
other candidate (20s) was not selected.
??
??
??
??
2
0120063988
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120063988