01a51151
11-04-2005
Wego Wang, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Wego Wang v. Department of Transportation
01A51151
November 4, 2005
.
Wego Wang,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A51151
Agency No. 2-04-2047
DECISION
Complainant filed an EEO complaint in which he claimed that the agency
discriminated against him on the basis of his national origin (Chinese),
when he was not selected for the position of Chief Scientific and
Technical Advisor.
The record reveals that complainant has been employed by the agency
as an Aerospace Engineer, FG-0861-13. Complainant has worked in the
agency's Engine and Propeller Directorate since August 1995, and has been
involved with various engine certifications, continued airworthiness and
other programs. Complainant was among four candidates for the position
at issue.
The complaint was accepted for investigation. Subsequent to the
completion of the agency investigation, the agency notified complainant
of his right to request either a hearing and decision by an EEOC
Administrative Judge or an immediate final action by the agency.
Complainant requested a final action. The agency therefore issued a
final action dated October 15, 2004, finding that no discrimination
occurred. The agency determined that complainant set forth a prima
facie case of national origin discrimination. The agency noted that
complainant was referred as qualified for the position and the selectee
was not Chinese. The agency determined that it articulated legitimate,
nondiscriminatory reasons for its non-selection of complainant.
According to the agency, the selectee better met the qualification
criteria as he possessed current relevant industry �hands-on� experience,
whereas complainant's work focused on research and academics. The agency
determined that complainant failed to show by a preponderance of the
evidence that he was discriminated against when he was not selected
for the position at issue. The agency stated that although complainant
was qualified for the position, the record does not indicate that his
qualifications were observably superior to those of the selectee.
According to the selecting official, the selectee had more relevant
industry certification experience, including engine/airframe integrations
since 1984. The selecting official stated that the selectee's work at
Boeing Company included more than just engine and materials science work,
but mainly focused on how the engine and airframe related to each other
in both the hardware and software aspects. Two agency officials who
assisted in the selection process testified that the selectee possessed
the technical skills that were needed. The selecting official stated
that complainant's work experience was mainly research and teaching
with academics and no non�research related certification experience.
According to the selecting official, complainant's work was more
regulatory rather than hands-on involving design. The selecting
official stated that the agency project engineers, such as complainant,
had much less technical program/project management responsibility.
The other agency officials who assisted in the selection process stated
that complainant was limited in the skills they were seeking. One of
these officials stated that the position at issue required exceptional
customer awareness and interpersonal skills and that complainant was
not necessarily receptive to different approaches to solving issues.
On appeal, complainant contends that the selectee submitted a very
weak and vague application package with many specialized experience
requirements not even mentioned. Complainant maintains that he submitted
a comprehensive application package addressing each specialized experience
requirement in itemized detail. Complainant further argues that the
selecting official did not meet with the selectee until he was selected.
Complainant contends that he was denied due process when one of his
references was misled as to where he should send his recommendation
letter. Additionally, complainant claims that his customer awareness
and interpersonal skills are significantly better than that attributed to
him by one of the agency officials who assisted in the selection process.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
For complainant to prevail, he must first establish a prima facie
case 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.
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. 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 pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of discrimination on the basis
of national origin. Next, we shall consider whether the agency
articulated a legitimate, nondiscriminatory reason for its actions.
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Consequently,
we will dispense with an examination of whether complainant established
a prima facie case with respect to the above cited issues and review
below, the reasons articulated by the agency for its actions as well as
complainant's effort to prove pretext.
The agency stated that complainant was not selected for the Chief
Scientific and Technical Advisor position because the selectee had more
relevant industry certification experience and possessed the technical
skills that were needed. The agency noted that the selectee's work at
Boeing Company focused on how the engine and the airframe related to
each other in both the hardware and software aspects. According to the
agency, complainant's work experience was mainly research and teaching
with academics and no non-research related certification experience.
The agency stated that complainant had much less technical program/project
management responsibility than the selectee. We find that the agency
articulated legitimate, nondiscriminatory reasons for its decision not
to select complainant.
We find that complainant has failed to refute the agency's stated reasons
for his non-selection for the position at issue. Complainant has not
shown that his qualifications for the position at issue were so superior
to those of the selectee as to warrant a finding that the agency's stated
reasons are pretextual. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). The Commission finds that it was not unreasonable for the
agency to determine that the selectee's experience was more applicable
to the relevant position. Complainant's contentions regarding alleged
questionable practices during the application and selection processes
are not of sufficient merit to warrant a finding that discriminatory
motivation was involved. We find that complainant has not shown, by a
preponderance of the evidence, that the agency's stated reasons for his
nonselection were pretext intended to mask discriminatory intent.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's decision,
because a preponderance of the record evidence does not establish that
national origin discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 4, 2005
__________________
Date