01963981
07-19-2000
Ricky W. Baird, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Ricky W. Baird v. Department of Transportation
01963981
July 19, 2000
Ricky W. Baird, )
Complainant, )
) Appeal No. 01963981
v. ) Agency No. DOT 93-0198
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission
from a final agency decision (FAD) concerning his allegations that the
agency violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. �
2000e et seq. Complainant alleges that the agency discriminated against
him on the basis of sex (male) when he was not selected for the position
of Assistant Manager for Training (AMT), GM-2152-15, and when the agency
impermissibly took into account the sex of the applicants in making
the selection. The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).<1> For the
following reason, we affirm the FAD.
On March 15, 1993, complainant, then a Quality Assurance Specialist,
(GS-2152-14), filed a formal complaint against the agency. Complainant
asserted that, under the agency's affirmative action plan (AAP), it
was predetermined that a female employee would be selected for the AMT
position in the agency's Chicago O'Hare Tower. The agency conducted an
investigation and provided complainant with a copy of the Investigative
Report. Complainant requested an immediate FAD which the agency issued
on March 26, 1996, finding no discrimination. It is from this decision
complainant now appeals.
Complainant applied for the AMT position at O'Hare and was placed on the
"Best Qualified" list by the three-person panel charged with developing
a list from which the selecting official (SO) could make his decision.
Ultimately, the panel generated an alphabetical list of seven candidates,
five males and two females, for submission to SO. SO chose the selectee
(SE), a female, for the AMT position. According to SO, it was clear
that SE was the "top contender" for the post after he considered the
following factors: (1) background; (2) career progression; and (3)
interpersonal relationships.
SO explained that complainant and SE were substantially comparable with
regard to the three factors. To reach his decision, SO paid special
attention to each candidate's supervisory and management experience.
Ultimately, successful management experience was deemed of paramount
importance. SO concedes that complainant probably had more management
experience. However, SE had also garnered significant experience as
a manager while distinguishing herself by rewriting the facility
training manual and using her strong interpersonal skills to stand
out as a leader. SO's decision was also influenced by feedback he
received from complainant's former supervisor stating that complainant
was confrontational in his dealings with others.
On appeal, complainant maintains that he should have been selected
because: (1) the panel gave him a score of 169.75 as opposed to
SE's score of 109.25; (2) he had more extensive tower experience at
different airports; and (3) he received higher ratings on performance
appraisals. Therefore, complainant asserts that the reasons for SE's
selection were pretextual. Complainant claims that he was told by SO
on December 30, 1992 that he was not selected for the position because
of the agency's major emphasis on recruiting females and minorities
and because complainant was perceived as not working well with people.
Complainant also contends that SO stated that he wished he could have
selected him but that the Air Traffic Manager (ATM) had the final word.
Complainant further asserts that SO was told by ATM that complainant would
never get a GM-15 post at O'Hare and that execution of the AAP required
hiring minorities and females when they rank among the best qualified.
Complainant also contends that his former supervisor's assessment of him
as "confrontational" is not supported by his employment evaluations.
In response, the agency asserts that complainant cannot establish pretext.
The agency relies on SO's statement in which he averred that sex was
only one of the considerations in selecting SE and that he was never
directed by ATM to select a female or minority candidate. With regard
to complainant's challenge of the agency's AAP, the agency explains
that the plan was valid insofar as it attempted to remedy the under
representation of females in the skilled craft occupation and did not
promulgate quotas. Additionally, the agency qualified complainant's score
of 169.75 by stating that two other candidates on the "Best Qualified"
list had higher overall scores than complainant.
Based on the standards set forth in McDonnell Douglas Corp. v. Green,
411 US. 792 (1973), complainant may establish a prima facie case of
discrimination by demonstrating that he was subjected to an adverse
employment action under circumstances which, if left unexplained,
raise an inference of unlawful motivation. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). The agency must then
rebut the presumption of discrimination raised by the prima facie case
by articulating a legitimate, nondiscriminatory reason for its action.
Id. at 254. Once the agency rebuts the prima facie case, the burden
returns to complainant to prove that the agency's proffered explanation
is either unworthy of belief or is so unsupported by the record that
discrimination was the more likely motivation. Id. at 256.
The Commission finds that complainant has established a prima facie case
of discrimination by showing that (1) he belongs to a protected group;
(2) he applied, was qualified, and was considered for the position; (3)
he was not selected for the position; and (4) a person not of his group
was selected. Keyes v. Secretary of the Navy, 853 F.2d 1016, 1023 (1st
Cir. 1988). As an explanation for not selecting complainant, SO stated
that he evaluated each of the seven candidates with regard to background,
career progression, and interpersonal relationships. Initially, SE and
complainant's qualifications were substantially comparable. However,
upon review of the documentation submitted on each candidate, SE stood
out as the "top contender" on the basis of her significant and successful
managerial experience at O'Hare and her strong interpersonal skills.
SO explained that although SE's selection was based primarily on her
qualifications, the agency's AAP was "a consideration.�
When an agency considers its affirmative action goals in selecting a
candidate for a job, the Commission must determine whether the plan
is valid under the criteria developed by the Supreme Court in Johnson
v. Transportation Agency of Santa Clara County, California, 480 U.S. 616,
627 (1987); United Steel Workers of America, AFL-CIO-CLS v. Weber, 443
U.S. 193, 208-209 (1979). The burden of proving the AAP invalid rests
with the complainant. See Bragdon v. Department of Agriculture, EEOC
Request No. 05890700 (April 25, 1990). Complainant's only contention is
that ATM's mandate to promote women and minorities established an absolute
bar to his advancement at O'Hare. The record indicates that ATM expressed
his hope that the agency promote minorities and women who are on the "Best
Qualified" list. However, SO made the ultimate personnel decision. Thus,
complainant's claim that SO wanted to promote complainant or was ordered
by ATM not to promote complainant to the GM-15 position is not supported
by the record. Accordingly, the Commission finds that complainant failed
to demonstrate that the AAP was in violation of Title VII.
With regard to complainant's qualifications, though the record shows that
complainant sufficiently satisfied the job requirements for placement
on the "Best Qualified" list, we do not find that complainant's
qualifications were "so plainly superior as to require a finding
of pretext." Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Further, as in this case, an employer has greater discretion when
choosing a management level employee. Wrenn v. Gould, 808 F.2d 493, 502
(6th Cir. 1987). The record further reveals that, complainant, despite
his extensive supervisory experience, received a lower score than two
other candidates on the list and was characterized as confrontational by
a former supervisor. Considering the preponderance of the evidence, we
find that complainant has failed to provide sufficient justification for
the Commission to disturb the agency's employment decision. With respect
to SO's acknowledgment that the agency's AAP was a factor, the Commission
notes that under Johnson, the AAP may consider sex as one of several
factors to be taken into account in evaluating qualified applicants
for a position. Johnson, 480 U.S. at 641. Thus, the instant case is
legally consistent with Johnson insofar as sex was "a consideration"
in SO's ultimate selection decision.
In conclusion, the Commission finds that complainant failed to establish
that the agency's proffered reasons were pretextual or that the agency's
AAP was invalid. Accordingly, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (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:
July 19, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.