0120110613
09-05-2012
Mark A. McLernen, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Mark A. McLernen,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120110613
Hearing No. 440-2010-00122X
Agency No. 2010-22999-FAA-04
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 12, 2010 final decision concerning his 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.
At the time of events giving rise to this complaint, Complainant worked as a Air Traffic Control Specialist (ATCS), AT-2152-GH, at the Agency's Green Bay facility in Wisconsin. On October 15, 2009, Complainant contacted an EEO Counselor. On January 29, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (46) when: (1) on or about April 28, 2009, he learned that he was not selected for the position of ATCS (Chicago), AT-2152-LH, advertised under vacancy announcement number AGL-AT-09-0080-112360M; and (2) on or about September 2, 2009, he learned that he was not selected for the position of ATCS (Chicago), AT-2152-LH, advertised under vacancy announcement number AGL-AT-09-0110-115361.
Claim 1
Upon review, we find that the Agency properly dismissed claim 1 pursuant to
29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the record reflects that Complainant learned of his non-selection via a letter dated April 28, 2009, but did not initiate contact with an EEO Counselor until October 15, 2009, which is beyond the 45-day limitation period. See 29 C.F.R. � 1614.105(a)(1).
Claim 2
Upon review, we find that Complainant failed to establish that the Agency discriminated against him on the basis of age when he was not selected for the ATCS (Chicago) position.
Assuming, arguendo, that Complainant established a prima facie case of age discrimination, we find that management articulated legitimate, nondiscriminatory reasons for Complainant's non-selection. Specifically, the Selecting Official (SO - age 50) averred that the "biggest red flag" about Complainant was that he did not become a Certified Professional Controller (CPC)1 at a Level 12 facility where he previously worked. Report of Investigation (ROI), Ex. F2, at 2. In addition, SO averred that after Complainant left the Level 12 facility, he went to a Level 1 facility for four years and then to a Level 7 facility for 14 years. Id. Further, SO averred that, in her experience, individuals who fail to certify at a high-level facility, and who subsequently work at lower-level facilities without returning to certify at a high-level facility, show a low success rate at the Chicago facility - a Level 12 facility. Id. Finally, SO averred that the Selectee (SE1 - age 26)2 had not been unsuccessful certifying at any facility and had demonstrated his ability to adapt at different level facilities by certifying at two facilities of increasing levels. Id. at 4, 8.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for age discrimination. Although Complainant raised several arguments on appeal,3 we find that he failed to show that that the Agency's reasons were pretxtual. We will address each of Complainant's arguments below.
First, Complainant asserted that SO was aware that he was in his mid-40s based on the employment dates in his application form. Even if that were the case, we emphasize that SO's knowledge of Complainant's age does not, by itself, prove age discrimination. Complainant must show that SO did not select him for the position based on his age.
Second, Complainant asserted that he did not become a CPC at the Level 12 facility not because he failed the training, but because he voluntarily removed himself from the training to take a hardship transfer. While this may be true, there is no indication that SO was aware of the reason behind Complainant leaving the facility without becoming a CPC. We note that Complainant's application only indicates that he did not become a CPC at the Level 12 facility and does not provide any further explanation. ROI, Ex. F10, at 2. Although SO may have erroneously assumed that Complainant did not become a CPC at the Level 12 facility because he failed the training, we find that Complainant presented no evidence that SO's mistaken belief was instead intentional discrimination based on age.
Third, Complainant asserted that Human Resources (HR) rated his application significantly higher than that of SE1, and that SO should have considered those ratings. HR rated each application on five factors: (a) facility complexity level; (b) aviation experience; (c) experience and how recenct; (d) education and self-development; and (e) awards. ROI at Ex. F10, F15. HR gave Complainant's application a rating of 72 and SE1's application a rating of 36. Id. Complainant received a higher rating than SE1 primarily because he had 21 years of experience at the Agency and SE1 had just over one year of experience at the Agency. Id. Although Complainant had more years of experience than SE1, greater years of experience does not necessarily make one candidate more qualified for a position than another. See Ropelewski v. U.S. Postal Serv., EEOC Request No. 05940313 (Nov. 23, 1994). Here, SO found SE1 to be better qualified for the position at the Level 12 Chicago facility because, unlike Complainant, SE1 had not left another high-level facility without becoming a CPC at that facility. Further, we note that none of the eight selectees for this position had left another high-level facility without becoming a CPC at that facility. ROI, Ex. F11-F14, F16-F18. Finally, we note that the Agency's Permanent Internal Assignment policy does not require selecting officials to make selections based on HR's ratings. ROI at Ex. F6.
Fourth, Complainant asserted that he, like SE1, had demonstrated the ability to learn and improve by progressing from a lower-level facility to a higher-level facility. According to their applications, SE1 transferred from a Level 6 facility to a Level 7 facility and Complainant transferred from a Level 1 facility to a Level 7 facility. ROI, Ex. F10, at 2; Ex. F15, at 2. While Complainant focuses on the similarities between him and SE1 in that they both progressed from a lower-level facility to a higher-level facility, he did not mention the one important difference that SO characterized as a "red flag," i.e., his not becoming a CPC at a previous high-level facility. Id.
Fifth, Complainant asserted that SO did not select him because he was older and was eligible to retire at the age of 50. Although Complainant believes that SO did not want to hire older workers, we note that two of the eight selectees for this position were 44 and 43 - only two to three years younger than Complainant. ROI, at Ex. G2. In addition, we note that SO's previous selections for other ATCS positions included individuals who were Complainant's age or older. ROI, at Ex. G3.
Sixth, Complainant asserted (and testified in his affidavit) that SO spoke to his Second Level Supervisor (S2 - age 46) during the selection process and asked if he (Complainant) had talked about retiring. S2, however, averred that there was no discussion with SO about Complainant's retirement eligibility. ROI, Ex. F4, at 2. The record contains no other documentary or testimonial evidence about this alleged discussion. A hearing "provides the parties with a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 7, � I. (Nov. 9, 1999). Had Complainant not withdrawn his request for a hearing, he would have had the opportunity to cross-examine S2 and SO, and the AJ could have made credibility determinations based on both Complainant's and management's testimony. As Complainant withdrew his request for a hearing, we do not have the benefit of an AJ's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. We are not persuaded, based on the totality of the record before us, that SO asked S2 about Complainant's retirement during the selection process.
Ultimately, 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 Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, we find that Complainant has failed to show that the Agency's explanations were a pretext for age discrimination.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that age 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
_____9/5/12_____________
Date
1 An ATCS becomes a CPC at a particular facility after completing all the required training. The facility level is a reflection of how busy the facility is - the higher the number, the busier the facility. Level 12 is the highest level.
2 There were eight candidates selected under this vacancy announcement. ROI, at Ex. G2. Complainant, however, only compared himself to SE1 and did not compare himself to the other candidates. ROI, at Ex. F1.
3 On appeal, Complainant also discussed two previous non-selections involving ATCS positions at the Chicago facility that he applied for in December 2008 and January 2009. We find that those non-selections are not at issue in the instant complaint and decline to address them at this time.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120110613
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110613