Leslie A. Anderson, Complainant,v.Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionDec 21, 2012
0120123173 (E.E.O.C. Dec. 21, 2012)

0120123173

12-21-2012

Leslie A. Anderson, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.


Leslie A. Anderson,

Complainant,

v.

Ray H. LaHood,

Secretary,

Department of Transportation

(Federal Aviation Administration),

Agency.

Appeal No. 0120123173

Agency No. 2011-24194-FAA-03

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 24, 2012 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

Complainant, a former Agency employee and an applicant, filed the instant formal complaint on December 14, 2011. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), age (over 40), and in reprisal for prior protected activity when:

on September 27, 2011, he learned that he was not selected for the position of Drug and Alcohol Compliance and Enforcement Inspector, advertised under Vacancy Announcement Number AWA-AAM-11-AS65992-20802.

After the investigation of the formal complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on July 24, 2012, pursuant to 29 C.F.R. � 1614.110(b).

The Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of age and reprisal discrimination. The Agency further found that Complainant established a prima facie case of race discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext. Specifically, the Agency found that the three selectees were chosen because of their high scores. The Agency also found that Complainant did not provide evidence to show that the Agency management's reasons (that others were better qualified) were a pretext for discrimination.

The Drug Abatement Division Manager was the selecting official for the position of Drug and Alcohol and Enforcement Inspector. The selecting official stated after receiving the candidates' application packages, he established an interview panel of four Agency officials. The selecting official stated that because of the large number of applications for the subject position, the applications "are not specifically ranked according to set criteria. Instead all applications are reviewed for prior work experience. All applicants with prior work experience related to regulatory compliance audits are referred for interview."

The selecting official stated that the panel conducted the interviews by telephone "based on a scripted set of questions." The selecting official stated that the panel took turns asked each question and the candidates' responses were graded by each panel member, and a basic score was given for each question. The selecting official stated that following the interviews, the panel aggregated all of the candidates' scores to determine the average score of each candidate. The panel then provided him with their recommendations based on the average scores, in descending order.

After reviewing the panel's recommendations, the selecting official chose the top three scoring candidates for the subject positions. The selecting official stated that when one of the top three scoring candidates declined the offer for the Agency's Miramar, Florida office, he then selected the fourth top ranking candidate for the subject position. The selecting official did not select Complainant because he "was recommended as the fifth applicant to be selected." The record reflects that the top four scoring candidates received overall scores of 550, 538.54, 529.38, and 528.38, respectively. Complainant was ranked fifth with an overall score of 501.88. Moreover, the selecting official stated that Complainant's race, age and prior protected activity were not factors in his determination to select the selectees for the subject positions.

Complainant asserted that the Eastern Compliance and Enforcement Center Manager (Manager), his former supervisor and one of the interview panelists, stated that she will only hire Hispanics. However, the selecting official denied this assertion. Specifically, the selecting official stated "I've never heard [Manager] say that she will only hire Hispanics. Her hiring record speaks for itself. First of all, [Manager] is not the selecting official for the inspector in her office. Second, since our interviews are done telephonically, we typically do not know the race or age of the applicants. And finally, [Manager] has made five selections since becoming a manager (four Team Coordinators and one Administrative Officer). Out of those five selections, she has selected three African-American inspectors to be her Team Coordinators."

The Manager stated that she was one of the interview panelists. The Manager stated that after she and two other panelists conducted the interviews, they rated the candidates and made recommendations to the selecting official. The Manager stated that the panel recommended the top three scoring candidates to the selecting official for consideration. The Manager stated that when the third top scoring candidate declined the office for the Agency's Miramar, Florida office, the fourth top ranking candidate was chosen "because he scored higher than [Complainant]. [Selectee] was the fourth highest scoring applicant and [Complainant] was the fifth."

With respect to Complainant's allegation that the Manager made a comment that she will only hire Hispanics, the Manager stated "this allegation is false. Since becoming a Manager in 2007, I have hired individuals of various races and ethnic backgrounds to include black, white, Asian, and Latinos."

Complainant, on appeal, merely stated that the reason that he filed the instant appeal was "based on the following information: The Miami Drug Abatement Office is currently under investigation based on Civil Rights Violations." In support of his assertions, Complainant submitted a copy of a letter from a named Agency official's memorandum dated August 2, 2012 to three named Agency officials. Therein, the Agency official requested that the officials to consider voluntarily participate in a climate assessment of the Miami office which would be conducted by the Office of Civil Rights and Human Resources.

The instant appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part 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).

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); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

The Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.

Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.

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

December 21, 2012

__________________

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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