Tyrone D,1 Complainant,v.Robert M. Speer, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJul 20, 2017
0120160198 (E.E.O.C. Jul. 20, 2017)

0120160198

07-20-2017

Tyrone D,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Tyrone D,1

Complainant,

v.

Robert M. Speer,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 0120160198

Hearing No. 570-2014-00585X

Agency No. ARMYER12SEP04017

DECISION

On October 20, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 13, 2015 final order concerning his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was not an employee of the Agency. (Complainant worked as an Air Traffic Controller Specialist for the Federal Aviation Administration (FAA) from 1989 until 2005 when he separated from the agency due to a reduction in force (RIF). On January 14, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic), disability (spinal stenosis), and age (55) when:

1. the Agency did not select Complainant for the position of Airfield Management Specialist, GS-2150-10, Davison Army Airfield, under Announcement # NCFP12767572644014D (Announcement 1); and

2. the Agency did not select Complainant for the position of Airfield Management Specialist, GS-2105-10, Davison Army Airfield, Vacancy Announcement # NCAS13535908880371 (Announcement 2).

The Agency conducted an investigation of Complainant's claims. Complainant stated that he should have been selected for both announcements because he held a GS-12 Automated Flight Service Controller position for over 16 years with FAA, and he has lifetime reinstatement rights due to his veteran and disabled veteran status. Complainant acknowledged that he was not aware of the other candidates' qualifications, but stated that his qualifications are plainly superior. Complainant stated that he never met or spoke with the selecting official (S1) but believes S1 knew he was Hispanic based on his name. Complainant stated that age was a motivating factor because S1 bypassed use of the oldest veterans' hiring program - Veteran's Recruitment Appointment.

For Announcement 1, S1 stated that the two selectees - C1 and C2, had relevant experience and education. S1 stated that C1 completed formal airfield management training and had experience in a temporary position at Davison Army Airfield so he was thoroughly familiar with Davison operations. S1 stated that C2 had formal airfield management training (including the pinnacle Airfield Managers Course), performed a related job for decades, and presided over flight line driving and airfield management training programs. S1 stated that he and an Airfield Management Supervisor (S2) ranked the resumes separately and met to discuss. He stated that Complainant's resume was in the bottom tier of their rankings. S1 stated that Complainant does not have recent experience as an Airfield Management Specialist or formal airfield management training, Complainant's past position is a different job than the vacancy, and Complainant is not as familiar with the daily operations of Davison Airfield. S1 stated, "I need people who can come in and hit the ground running."

For Announcement 2, S1 stated that the selectee - C3, had extensive knowledge and experience in all facets of Airfield Management duties. He stated that C3 is an expert in conducting airfield inspections and checks, evaluating airfield pavements, and executing Bird Aircraft Strike Hazard prevention methods. Further, S1 stated that C3 was working in a similar capacity so he kept abreast of procedures and development of airfield safety requirements. S1 stated that he and S2 ranked resumes separately and it was clear that C3 ranked number one. A Human Resources Specialist stated that the selections complied with Agency staffing regulations to her knowledge.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's June 10, 2015 motion for a decision without a hearing and issued a decision without a hearing on September 10, 2015. Summarily, the AJ stated, "Though Complainant was qualified for the position, he has not demonstrated that his experience is clearly superior to that of the selectees." The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal from Complainant followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VI.B. (as revised, August 5, 2015)(providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute.

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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).

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).

After a review of the record for claims (1) and (2), we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. Further, even assuming arguendo that Complainant established a prima facie case of discrimination, the record shows that the responsible management officials articulated legitimate, nondiscriminatory reasons for the nonselections, i.e., preference for recent related experience and training, and greater familiarity with the specific airfield. Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes. He failed to show that his qualifications were plainly superior to those of the selectees, and it is not the intent of the Commission to substitute its judgment for that of the Agency where discriminatory motives have not been shown.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden's signature

Carlton M. Hadden, Director

Office of Federal Operations

July 20, 2017

__________________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.

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