0120093136
08-26-2011
Rena M. Price, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Rena M. Price,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120093136
Hearing No. 450-2006-00010X
Agency No. DOT 2005-19685-FAA-05
DECISION
On July 7, 2009, Complainant filed an appeal from the Agency’s June
5, 2009, final order concerning her equal employment opportunity (EEO)
complaint alleging 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. The Commission accepts the
appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.
ISSUE PRESENTED
The issue presented on appeal is whether the decision of the
Administrative Judge, finding that Complainant did not establish her
claim of race, sex, and age discrimination, is supported by substantial
evidence of record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
an Attorney, GS-14, in the Agency’s Office of Regional Counsel, Safety
and Enforcement Branch, Southwest Region, located in Ft. Worth, Texas.1
On June 10, 2005, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (African-American),
sex (female), and age (60) when she was not selected for the position
of Senior Attorney, GS-15, in October 2004.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and 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 14 and 15,
2009, and issued a decision in favor of the Agency on June 1, 2009.
The Agency subsequently issued a final order fully implementing the
AJ’s determination that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.
We note that this is the second appeal in this case. Previously, the
Commission determined that the record had not been adequately developed
and, further, that there remained unresolved issues of material fact with
regard to the reason for Complainant’s non-selection. We therefore
remanded the case for a hearing. Rena M. Price v. Dep’t of Transp.,
EEOC Appeal No. 0120070693 (Aug. 29, 2008).
Upon remand, the AJ conducted a two-day hearing, and thereafter found the
following facts: The Chief Counsel for the Agency was in his position
from May 2003 through September 30, 2006, and headed a legal staff of
approximately 180 attorneys. Upon taking his position, he traveled
to each regional office and met with the group and practice areas;
there were nine regional offices and two technical centers. In March
2004, the Agency underwent a reorganization. The Chief Counsel also
decided in 2004, upon securing funding, that each center and region,
as well as headquarters divisions, should get one nomination and
promotion of a staff attorney (GS-14 or J Band) to a senior attorney
(GS-15 or K Band) position. He tasked the Assistant Chief Counsel with
setting up a nomination and evaluation process. The decision was made
that each region, center, and headquarters division would be able to
nominate only one candidate for promotion, on a non-competitive basis.
The nominees were not informed of their nomination at the time it was
made. The nomination process was in August 2004. The Assistant Chief
Counsel assessed the nominations and prepared notes on each nominee;
she then met with the Deputy Chief Counsel, the Resource Management
Staff Manager and the Chief Counsel in order to discuss the nominees.
Nominees were not compared with one another, but rather were compared
against the performance standards for either a GS-15 or K Band attorney,
depending on which system that office functioned under. It was the
opinion of the Assistant Chief Counsel and of the Deputy Chief Counsel
that Complainant did not meet the criteria for promotion to the GS-15
level. The selection process notes prepared by the Assistant Chief
Counsel reflect this assessment. Additionally the Southwest Regional
Counsel had nominated not only Complainant, but another staff attorney
for promotion as well, in contravention of the instructions for the
nomination process. The Assistant Chief Counsel testified that she
called the Southwest Regional Counsel to inform her that she needed
to limit her nomination to one individual, but the Southwest Regional
Counsel refused to choose between the two nominees, stating that each
were qualified and deserving of the promotion to GS-15.
At the meeting between the Chief Counsel, Assistant Chief Counsel, Deputy
Chief Counsel and the Resource Management Staff Manager, all of the
nominees from each region were discussed, including both nominees from
the Southwest Region. The Chief Counsel testified that the Southwest
Region was the only office to nominate more than one candidate, and
that he did not believe that he should have to make a decision on which
nominee to choose when the Southwest Regional Counsel was in a better
position to make that assessment. He therefore decided that he would
not promote anyone from the Southwest Region. Complainant’s immediate
supervisor, the Managing Attorney for the Southwest Regional Office,
and the Southwest Regional Counsel submitted a memo of reconsideration
to the Chief Counsel on October 14, 2004, in which it was argued that
both of the Southwest Region nominees should have received promotions
to GS-15. In a memo dated November 29, 2004, the Chief Counsel declined
to reverse his decision. A total of thirteen attorneys were promoted,
as nominees had been made using the older organizational structure,
and not the more streamlined structure that had been recently implemented.
The AJ concluded that Complainant had established her prima facie cases of
race, sex, and age discrimination since persons outside of her protected
classes were given promotions under this process. She found that the
Agency had articulated legitimate, nondiscriminatory reasons for not
promoting Complainant to the GS-15 level. The Chief Counsel testified
that because there were two nominations from the Southwest Region, this
violated the process that had been established, and that he was not in the
best position to choose between the two nominees. As such, he declined to
do so and decided not to promote either candidate. The Assistant Chief
Counsel and the Deputy Chief Counsel each testified that they did not
believe Complainant met the criteria for promotion to GS-15, but that
in any event, because the Southwest Regional Counsel did not follow the
process and refused to choose one nominee over the other, no selection was
made for that region. The AJ found that Complainant had not established
that the Agency’s articulated reasons were pretext for discrimination.
Complainant had argued that the Chief Counsel had allowed the nomination
justifications for two other nominees (White males) to be re-written
to include more detail to justify the promotions, showing a deviation
from the process. The AJ found that those candidates were assessed as
having met the standards for promotion, and that the memos were simply
not detailed enough. The AJ also found that although one office had
two nominations, these nominations were from different practice areas
which had existed prior to the reorganization executed just a few months
prior to the promotion process, unlike the Southwest Regional Office.
Finally the AJ found that Complainant’s testimony that she was more
qualified than the other Southwest Regional Office nominee was not
dispositive, as the nominees were compared against GS-15/K Band standards,
and not against each other. The other Southwest Regional nominee also
was not promoted. The AJ concluded that Complainant had not shown
the Agency to have engaged in unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ's finding that the Agency's
explanation was credible is not supported by substantial evidence of
record; that Complainant presented substantial evidence in rebuttal of the
Agency's reasons for denial of her promotion; that the Agency's deviation
from the established promotion process supports an inference of pretext;
that statistical evidence of record supports a finding of pretext; and
that the AJ erred in excluding evidence regarding the Agency's failure
to promote African-American female attorneys in regional offices.
In reply, the Agency contends that the AJ’s decision is supported by
substantial evidence of record. The Agency notes that the AJ found the
relevant Agency officials to be credible witnesses. The Agency contends
that the testimony regarding management structure and senior attorney
ratios does not conflict with its stated explanation for Complainant’s
non-selection, and that the evidence of record regarding workforce
composition does not support a finding of pretext.
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. See 29 C.F.R. § 1614.405(a).
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 for 29 C.F.R. Part 1614 (EEO MD-110),
Chap. 9, at § VI.B. (Nov. 9, 1999).
Upon review, we find that the AJ’s decision is supported by substantial
evidence of record. It was the testimony of the Chief Counsel that
he decided not to promote either nominee from the Southwest Regional
Office because he did not believe that he was in the best position
to choose between the two nominees. He testified that the Southwest
Regional Counsel should have made that assessment in accordance with the
procedures instituted for this selection process. The Assistant Chief
Counsel testified that she informed the Southwest Regional Counsel that
she could only make one nomination and the Southwest Regional Counsel
refused to choose between her two nominees. The Southwest Regional
Counsel’s testimony confirmed this. Although the Assistant Chief
Counsel and the Deputy Chief Counsel also did not believe that Complainant
met the criteria for promotion to a GS-15, it was the ultimate decision of
the Chief Counsel not to promote either nominee from the Southwest Region.
Although Complainant argued that the Agency deviated from its promotion
procedures in the instances where the justification for promotion were
re-written for two other nominees, and that two nominees were promoted
from the same office, we note that the AJ found the testimony of Agency
officials explaining these differences to be credible. Complainant has
not convincingly shown that these deviations were permitted in order to
perpetuate unlawful discrimination. We find that the AJ’s conclusions
are supported by the record, and we affirm the AJ’s conclusion that
Complainant did establish that she was discriminated against as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, and for the foregoing
reasons, we AFFIRM the Agency’s final order.
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 (Nov. 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
August 26, 2011
Date
1 The record reflects that in 2008, Complainant received a promotion
to Senior Attorney, Pay Band K, under the Agency’s Core Compensation
Program, instituted beginning in 1995.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120093136
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013