01A21232
03-17-2003
Leroy Wigfall, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Leroy Wigfall v. Department of Transportation
01A21232
March 17, 2003
.
Leroy Wigfall,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01A21232
Agency No. 5-00-5010
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS in part and REVERSES in part, the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as an Aviation Safety Inspector, FG-1825-13, at the Dallas/Fort Worth
Business Center at the DFW Airport in Texas. Complainant applied for
seven promotional bids between February 1997 and December 1999 and was
not selected for any position. Believing he was discriminated against,
complainant sought EEO counseling and subsequently filed a formal
complaint on October 29, 1999, alleging that he was discriminated against
on the basis of his race (African-American) when he was not selected
for the following Aviation Safety Inspector positions:
(1) ASW-FS-97-059-14615, February 1997;
(2) ASW-FS-97-061-14617, February 1997;
(3) ASW-FS-97-198-17408, May 1997;
(4) ASW-FS-97-234-18298, May 1997; and
(5) ASW-FS-99-169-44711, April 1999.
The record reveals that subsequently, on January 28, 2000, the agency
accepted complainant's amendment to include two additional allegations
of race discrimination regarding complainant's nonselection for the
following promotions:
(6) ASW-FS-00-033-48089, December 1999; and
(7) ASW-FS-00-034-48092, December 1999.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing, however, he subsequently requested that
the AJ issue a decision on the record. The AJ returned the complaint
to the agency for issuance of a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination. The FAD further concluded
that assuming, arguendo, complainant established a prima facie case,
the agency nevertheless articulated legitimate, nondiscriminatory
reasons for its actions; namely, the best-qualified candidates
were selected. Specifically, as to positions (1), (2) and (3),
the selecting official (S1) stated that he did not recall complainant
being qualified or interviewed. As to (4), the selecting official (S2)
stated that complainant was qualified and was interviewed, however,
he did not present his skills effectively during the interview and
lacked the technical background needed for the position. As to (5),
the FAD found that complainant qualified and was referred, but was
not selected because he was not the best-qualified candidate given
that the selectees had more experience and education. As to (6), the
FAD found that complainant again qualified and was referred, but not
selected because complainant was not the best-qualified candidate based
on his presentation skills and experience. As to (7), the FAD found
that complainant again qualified and was referred, but the position was
cancelled and filled with an in-grade candidate who had the experience
needed for the position. The FAD concluded that complainant failed to
establish that these reasons were pretextual.
Complainant makes no new contentions on appeal. The agency requests
that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD issued
without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's
decision is subject to de novo review by the Commission. 29 C.F.R. �
1614.405(a). The allocation of burdens and order of presentation of proof
in a Title VII case alleging disparate treatment discrimination are a
three step procedure: complainant has the initial burden of proving, by
a preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
non-discriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
We begin by addressing item (5). Complainant established a prima facie
case of discrimination because the selectee was not in complainant's
protected class. However, the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant; namely,
complainant was not the best-qualified candidate given that the selectees
had more experience and education. As to (6), complainant failed to
establish a prima facie case of race discrimination, because the selectee
is a member of complainant's protected class. As to (7), complainant
failed to establish a prima facie case of discrimination, in that the
individual who received the position (A1) was not similarly-situated to
complainant; A1 was an in-grade candidate who requested, and was granted,
a reassignment to the position after the job announcement was cancelled.
See Report of Investigation (ROI), Tab 26. The agency submitted the
promotional bid packages as evidence in support of its articulated
reasons. See id., Tabs 21-27. Complainant has not established, by a
preponderance of the evidence, that the agency's reasons were pretexts
for race discrimination.
The 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). Complainant may
be able to establish pretext with a showing that his qualifications were
plainly superior to those of the selectee. Wasser v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d
1037, 1048 (10th Cir. 1981). The evidence of record fails to indicate
that complainant, although well-qualified for the promotions in items
(5), (6) or (7), had �plainly superior� qualifications as compared with
the selectees for the positions.
We now turn to addressing items (1) through (4). Initially, complainant
established a prima facie case of race discrimination because all of
the selectees were outside of his protected class. The agency cited
complainant's lack of qualifications as reasons for not awarding
complainant the promotions in items (1), (2) and (3). The record is
devoid of evidence to substantiate the proposition that complainant
lacked qualifications or that he was an inferior candidate as compared
with the selectees. As to (4), the selecting official cited complainant's
inferior �technical background� compared to the selectees', as well as his
failure to �present his skills effectively� during the interview. Again,
the record is devoid of any evidence in support of these statements.
The Human Resources Coordinator states that the relevant files for the
1997 promotions are �[u]navailable and have been destroyed.� See ROI,
Tab 19.
We are cognizant that the agency's burden to articulate a legitimate
non-discriminatory reason for its actions is not an onerous one.
In the case at hand, however, the record is without any independent
evidence that demonstrates that complainant was less qualified than the
selectees for the positions in items (1) through (4), because the agency
has failed to provide the relevant files. Consequently, the Commission
finds that the agency has failed to set forth, with sufficient clarity,
reasons for complainant's nonselection for promotions (1) through (4) such
that he has been given a full and fair opportunity to demonstrate that
those reasons are pretext. See Parker v. United States Postal Service,
EEOC Request No. 05900110 (April 30, 1990): Lorenzo v. Department of
Defense, EEOC Request No. 05950931 (November 6, 1997). The agency
has therefore failed to provide an articulation of its reasons for not
selecting complainant for the position in question sufficient to overcome
complainant's prima facie case of discrimination. See Prevo v. Federal
Deposit Insurance Corporation, EEOC Appeal No. 01972832 (March 10, 2000).
After a careful review of the record, and for the reasons set forth above,
we AFFIRM the agency's finding of no discrimination with respect to items
(5), (6) and (7), but REVERSE as to items (1) through (4). We note that
complainant has raised a cognizable claim for compensatory damages when
he requested, in his formal complaint, to be granted all relief to which
he was entitled under Title VII. Accordingly, we REMAND this case to
the agency to take remedial actions in accordance with this decision
and Order below.
ORDER
The agency is ORDERED to take the following remedial actions:
(1) The agency shall promote complainant to the position of Aviation
Inspector, FG-14, or a substantially equivalent position retroactive to
the date of the first nonselection (February 1997), no later than thirty
(30) calendar days after the date this decision becomes final.
(2) The agency shall determine the appropriate amount of back pay
(with interest, if applicable) and other benefits due complainant,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. 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 the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The 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."
(3) Within fifteen (15) days of the date this decision becomes final, the
agency shall give complainant a notice of his right to submit objective
evidence (pursuant to the guidance given in Carle v. Department of the
Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim
for compensatory damages within forty-five (45) calendar days of the date
complainant receives the agency's notice. The agency shall complete the
investigation on the claim for compensatory damages within forty-five
(45) calendar days of the date the agency receives complainant's claim
for compensatory damages. Thereafter, the agency shall process the
claim in accordance with 29 C.F.R. � 1614.108(f).
(4) The agency shall train the responsible management officials identified
as being responsible for the nonselections in 1997 regarding their
obligations under Title VII.
(5) 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 of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER
The agency is ordered to post at its Dallas/Fort Worth Business Center at
the DFW Airport in Texas, copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1092)
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the agency.
The attorney shall submit a verified statement of fees to the agency --
not to the Equal Employment Opportunity Commission, Office of Federal
Operations--within thirty (30) calendar days of this decision becoming
final. The agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (KO501)
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 19848, Washington,
D.C. 20036. 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 (M0701)
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 (R0900)
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 (Z1199)
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
March 17, 2003
__________________
Date