0120092732
08-25-2011
John A. Beresh, Jr., Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
John A. Beresh, Jr.,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120092732
Agency No. DOT-2007-21330-FAA-06
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s April 21, 2009 final decision concerning
an equal employment opportunity (EEO) complaint claiming 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq.
BACKGROUND
During the period at issue, Complainant was employed as an Air Traffic
Control Specialist (ATCS), AT-2152-HH, at the Agency’s Western Pacific
Region, AWP-9, in Lawndale, California.
On July 3, 2007, Complainant filed the instant formal complaint. Therein,
Complainant alleged that the Agency discriminated against him on the
bases of race (Caucasian), sex (male), and age (over 40) when:
on or about April 23, 2007, he was informed that he was not selected
for the position of Air Traffic Control Specialist (ATCS), AT-2152-KH,
listed under Vacancy Announcement Number AWP-ATO-07-14AJM-92696 (Las
Vegas Terminal Radar Approach Control (TRACON), and AWP-ATO-07-14AJM-92700
(Las Vegas Air Traffic Control Tower (ATCT).
The record reflects that after the investigation, Complainant requested
a final Agency decision. On March 17, 2008, the Agency issued a decision
finding no discrimination concerning two non-selections.
On appeal, the Commission affirmed the Agency’s finding of no
discrimination regarding one non-selection of the ATCS position at the
Las Vegas ATCT. However, the Commission vacated the Agency’s finding
of no discrimination regarding Complainant’s non-selection of the ATCS
position at the Las Vegas TRACON and remanded the matter to the Agency
for a supplemental investigation. The Agency was ordered to ensure that
the investigator obtain evidence which may be relevant in “determining
the merits of Complainant’s complaint, including, but not limited
to, affidavits from relevant parties; any documentation concerning the
selection process; and application materials submitted by all candidates
for the position of ATCS at the Las Vegas TRACON. Beresh v. Department
of Transportation, EEOC Appeal No. 0120082288 (July 1, 2008).
Following the Commission’s decision, the Agency conducted a supplemental
investigation of the ATCS position in accordance with 29 C.F.R. §
1614.108. Following the completion of the supplemental investigation,
Complainant was provided with a copy of the report of investigation and
notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). In accordance with Complainant’s request, the Agency issued
a final decision on April 21, 2009, pursuant to 29 C.F.R. § 1614.110(b).
In its April 21, 2009 final decision, the Agency found no discrimination
concerning Complainant’s non-selection to the position of ATCS at
TRACON. The Agency found that Complainant established a prima facie
case of race, sex and age discrimination because the selectees selected
for the subject ATCS positions were outside of Complainant’s protected
groups. The Agency nevertheless found that Agency management articulated
legitimate, nondiscriminatory reasons for its actions which Complainant
failed to show were a pretext for discrimination. The instant appeal
followed.
By affidavit, the selecting official (SO) stated that when he received
the list of certificate of eligibles for the subject position at TRACON,
he give the list to the Operations Manager (OM). SO stated that OM then
gave the list to a named supervisor (S1). SO stated that typically, he
would give the list of qualified candidates to one of the three operations
managers “to manage for that bid. The operations manager then usually
arranged to have one or two of the front-line managers (Supervisors)
“work the package” and make recommendations to the operations
manager. SO stated that in the instant case, he did not know the full
process that OM and S1 followed “in selecting from the qualified list
those applicants they referred to me. There is no procedure for how
an operations manager should handle bid packages.” SO stated that
OM made a recommendation of “around seven names to me and I signed
off on all of them except for those that the . . . manager indicated
could not be released within a reasonable period.” SO stated that he
did not select Complainant for the subject position because OM did not
recommend him for the subject position. Specifically, SO stated, “I
did not select [Complainant] because the subordinate managers who worked
the package and researched the candidates did not recommend him to me.”
OM stated that he was the recommending official for the subject position
at TRACON. OM stated that after SO gave him the certificate list,
he “gave the applications a cursory review when [SO] first gave them
to me. It was a big package of 25-30 people. I looked through the list
of applicants and applications but did not notice [Complainant’s]
name.” OM stated that he then gave the list and the candidates’
applications to S1 for review. Specifically, OM stated that he asked
S1 “to basically work the list by contacting the facilities and to
get back to me.” OM stated that S1 gave him, “a list of about 10-11
names based on recommendations he got by calling other facilities.” OM
stated that he recommended all candidates on the list that OM gave him.
OM stated that he did not recommend Complainant for the subject position
because his name was not on the list he received from S1.
OM stated that after he learned that Complainant had filed a formal
complaint alleging non-selection, he reviewed Complainant’s application
“again and noticed that he did not successfully complete training at
two air route traffic control centers during his career. [Complainant]
did not complete training at Cleveland ARTCC in January 1980 and again in
August 1986.” OM speculated that this “. . . would be a reason why
we may not have inquired about him or selected him. Las Vegas TRACON
is a very complex and busy terminate radar facility. We are looking
for the best qualified and experienced controllers we can get. If [S1]
had noticed that an applicant did not successfully complete training at
two facilities, he may have not called the applicant’s supervisor.”
S1 stated that he does not remember working on bids for TRACON “during
the period from January 2007 through my retirement at the end of March
2007.” S1 further stated that he does not remember getting the list
from OM. Specifically, S1 stated, “I don’t remember getting a
‘cert list’ and applications from [OM]. I do not remember making
any phone calls about applicants for any TRACON bid. I may have done so,
but I do not remember.” S1 further stated that if he worked on the bid
package, he would not have discriminated against anyone “based on age,
race, and sex. When I worked on bid packages as an operations manager,
I never considered race, sex in making recommendations.”
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).
After a careful review of the record, including the supplemental
investigation, we find that the Agency has still not set forth, with
sufficient clarity, the reasons for Complainant’s non-selection
for the ATCS position such that Complainant could show pretext.
While the Agency's burden is not onerous, it must nevertheless provide
a specific, clear, and individualized explanation for the treatment
accorded Complainant. Wilson v. Department of Veterans Affairs, EEOC
Appeal No. 01995055 (December 21, 2001). Complainant is entitled to some
rationale for his non-selection that provides him with an opportunity
to attempt to satisfy his ultimate burden of proving that the Agency's
explanation was pretext for discriminatory animus. Id.
Based on a review of the record, Complainant appears to have
qualifications and experience similar to that of the selectees. We
acknowledge that the OM noted that Complainant had not completed training
on two separate occasions. However, Complainant disputes this assessment
and the training occurred over twenty years before the selections
decisions at issue. The OM’s assessment that such events could be a
reason that the Agency may not have inquired about him or selected him”
(emphasis added) constitutes pure speculation on his part. Because
of Complainant’s qualifications, and the Agency’s failure to
provide sufficient articulation of the reasons for his non-selection,
Complainant’s prima facie inference of discrimination stands unrebutted,
and we find he has established a claim of discrimination on the raised
bases.
Accordingly, the Agency’s finding of no discrimination with regard to
Complainant’s non-selection to the position of ATCS at the Las Vegas
TRACON is REVERSED. The Agency is ordered to REMAND this issue for
processing in accordance with the ORDER set forth below.
ORDER
Within sixty (60) calendar days of the date of this decision, the Agency
is ordered to take the follow action:
1. The Agency shall offer Complainant the position of ATCS, or
a substantially equivalent position, that is similar in duties,
responsibilities and location to the position that he would have occupied
had he been selected in 2007 for the TRACON position.
2. The Agency shall award Complainant back pay, with interest and all
benefits from the date the selectee assumed to 2007 TRACON position until
the date Complainant either assumes or declines the ATCS position in
paragraph 1 above. The Agency shall determine the appropriate amount of
back pay, with interest, and other benefits due Complainant pursuant to
29 C.F.R. § 1614.501. The Complainant shall cooperate in the Agency's
efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the Agency. If there is a
dispute regarding the exact amount of back pay and/or benefits, the Agency
shall issue a check to Complainant for the undisputed amount. Complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision." The Agency shall provide
Complainant back pay, with interest and other benefits due Complainant.
3. The Agency shall conduct a supplemental investigation to determine
Complainant’s entitlement to compensatory damages and shall issue
him a written decision on his entitlement to compensatory damages,
appealable to this Commission.
4. The Agency shall provide training to the responsible management
officials and consider taking appropriate disciplinary action against
the responsible management officials.
5. The Agency shall post the attached notice in the area where notices
are usually attached as is set forth in the posting notice below.
The Agency is further directed to submit a report of compliance, as
provided in the statement entitled “Implementation of the Commission’s
Decision.” The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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 (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
August 25, 2011
__________________
Date
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0120092732
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092732
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