0120160906
05-29-2018
Alberto O.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alberto O.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120160906
Hearing No. 520-2014-00144X
Agency No. 201325100FAA01
DECISION
On December 18, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 17, 2015, final agency decision (FAD) 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's FAD.
ISSUE PRESENTED
Whether the FAD properly found that Complainant did not demonstrate that he was discriminated against based upon his national origin (Hispanic) and disability when, on March 5, 2013, he learned that he was not selected for the position of Support Specialist, AT-2152-LI, at the New York Terminal Radar Approach Control (TRACON), advertised under Vacancy Announcement AEA-ATO-13-29602.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Front-Line Manager, AT-2152-LJ, at the Agency's New York Terminal Radar Approach Control (TRACON) facility in Westbury, New York. The Agency's FAD carefully articulates the relevant facts. The instant decision incorporates them by reference.
Complainant has been employed with the Agency in the above-referenced position since 1999. At the time of the selection at issue, he was not working as a Front-Line Manager because he had been diagnosed with glaucoma, and he was medically disqualified on December 29, 2011. Upon disqualification, Complainant was given the option to: retire; apply for OWCP; appeal the disqualification; or be terminated/removed. Complainant opted to file an appeal, and he subsequently requested reassignment to any Staff Specialist positon as an accommodation because his medical disqualification did not preclude him from performing the duties of that position.
The record is void of any evidence of actions taken after Complainant's appeal, but it is clear Complainant was assigned various duties including conducting training, working midnight shifts as an Operations Manager, and working Flight Data in the LaGuardia Area. On or around March 5, 2013, Complainant learned that he was not selected for the Support Specialist positon to which he applied. The record reflects that sometime during the middle of June 2013, after applying for the position at issue in the instant appeal, Complainant was given "temporary special consideration, which allowed him to perform the duties of a Front-Line Manager. Specifically, the Agency's Flight Surgeon determined that Complainant could work air traffic if he had a thorough check-up from his doctor and met the Agency's medical requirements for the special consideration. If his vision changed, Complainant would lose the special consideration status.
On July 22, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated in the statement of Issues Presented above. 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. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal through his attorney, Complainant requests that the Commission reverse the Agency's FAD and issue a decision finding that he was discriminated against as alleged. Complainant contends that there was no rational basis for the selection made because the Complainant was "painstakingly" more qualified than the Selectee. Complainant argues that the fact that the Selectee came from an outside facility and his appointment would not result in a staffing shortage is alone insufficient to support his selection over Complainant's. In sum, the Selecting Official offered reasons that were implausible, contradictory, and inconsistent because the reasons were merely pretext for discriminatory non-selection.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII and Rehabilitation Act case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of national origin and disability, we find that the Agency articulated legitimate, non-discriminatory reasons for the non-selection, and that Complainant failed to demonstrate any conduct on the part of the Agency was based on discriminatory animus.
The ATM indicated that the Selectee had diverse experience from his work in multiple disciplines in the Air Traffic Organization, and had a "depth and breadth" of experience at various levels and had exposure at Agency Headquarters. Additionally, the ATM asserts that many of the candidates were "in house" and currently working in critically staffed areas and/or positions which meant they could not be moved.2 Complainant was a supervisor in the LaGuardia Area and was bidding on a lower-level position. The Agency was short staffed with supervisors, and Complainant's experience and expertise were needed at his current higher level position. The Agency contends that services would be compromised if Complainant were moved out of a supervisory position due to the training required to bring on a new supervisor. Additionally, it would be a lengthy process to backfill his position.
The Commission has long held that an 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 Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, we find there is no persuasive evidence of unlawful motivation in the instant matter.
Denial of Reasonable Accommodation
Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish disability discrimination, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation.
For purposes of analysis only we will assume that Complainant is an individual with a disability, who could perform the essential functions of his position with or without an accommodation. Despite not immediately reassigning him to a Staff Specialist positon, the record indicates that the Agency accommodated Complainant. It is undisputed that after the disqualification, Complainant was assigned various duties including conducting training, working midnight shifts as an Operations Manager, and working Flight Data in the LaGuardia Area. None of these assignments required Complainant to have the medical clearance he lost under the disqualification. The record also reflects that sometime during the middle of June 2013, Complainant was given "temporary special consideration, which allowed him to perform the duties of a Front-Line Manager. Specifically, the Agency's Flight Surgeon determined that Complainant could work air traffic if he had a thorough check-up from his doctor and met the Agency's medical requirements for the special consideration. If his vision changed, Complainant would lose the special consideration status.
Based on the record before us, we would not find that Complainant was denied a reasonable accommodation. The Commission acknowledges that the suggestions and preferences of an employee seeking reasonable accommodation are highly relevant and must be considered. See, e.g., Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Mar. 1, 1999) (web version), at 6. However, an agency is not required to provide the precise reasonable accommodation an employee wants, so long as the agency provides a reasonable accommodation that is effective. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Mar. 1, 1999) (web version), at 8. It is the agency providing the accommodation which "has the ultimate discretion to choose between effective accommodations ...." 29 C.F.R. � 1630.9 (app.). We find that in light of all the circumstances at issue in this matter, offering Complainant alternative supervisory level duties following the disqualification effectively accommodated Complainant, and enabled him to remain employed by the Agency.
Although Complainant contends that his application to the Support Specialist position was an accommodation request and his non-selection for this position was a denial, we find that the Agency has demonstrated other ways in which it accommodated Complainant during his period of disqualification. In this case, we find that the Agency took care in assessing which accommodations would be most effective for Complainant, and not cause a major impact on the Agency's operations. Accordingly, we find that Complainant did not establish that he was denied a reasonable accommodation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the FAD properly held that Complainant did not establish that he was discriminated against on the bases of national origin (Hispanic) and disability, or denied a reasonable accommodation when he was not selected for the position of Support Specialist.
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
_5/29/18_________________
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.
2 There was a single candidate whose application was consistently ranked in the top three, but the applicant was also an Air Traffic Control Specialist (ATCS) in the Newark Area, and selecting him would cause a staffing shortage.
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