01981018
12-10-1998
Arthur G. Banazek, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Admin.), Agency.
Arthur G. Banazek v. Department of Transportation
01981018
December 10, 1998
Arthur G. Banazek, )
Appellant, )
) Appeal No. 01981018
v. ) Agency No. 4-96-122
) Hearing No. 220-97-5164X
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
(Federal Aviation Admin.), )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning his
allegation that the agency violated Title VII of the Civil Rights Act of
1964, 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 hereby accepts the appeal in accordance with EEOC Order
No. 960, as amended.
The issue presented is whether appellant proved, by a preponderance
of the evidence, that he was discriminated against because of
his race (Caucasian), color (white), sex (male), national origin
(European/non-Hispanic), reprisal (prior EEO complaint), and age (59) when
he was not selected for the position of Assistant Systems Management
Office Manager, GS-0301-15, at the Ohio Systems Management Office in
February of 1996.
On appeal, appellant's attorney contends that appellant was improperly
denied a hearing after having raised genuine issues of material fact.
Appellant further contends that all of the job candidates should have
been chosen from the Airway Facilities National Selection System National
Register (AFNSS), but that the agency violated its own policy by choosing
a candidate from the Merit Promotion Program (MPP). In response, the
agency points out that it revised its policy by memorandum dated July 1,
1994, to allow upper management positions to be filled from either the
AFNSS or MPP Registers. It further notes that appellant did not rebut
the reasons set forth by the selection panel for not recommending him
to the selecting official.
At the time of his complaint, appellant was employed by the agency as
a Manager, Technical Support Staff, GS-2101-13. Believing that he was
a victim of discrimination when he was not selected, appellant sought
EEO counseling and later filed a formal EEO complaint dated August 30,
1996, wherein he alleged that he had been discriminated against on the
above-referenced bases.
The agency complied with all procedural and regulatory prerequisites,
and on September 30, 1997, the EEOC Administrative Judge (AJ) issued a
Recommended Decision (RD) without a hearing finding no discrimination
on any basis. Subsequently, the agency adopted the RD as its own final
decision.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We therefore discern no basis to
disturb the AJ's finding of no discrimination. In regard to appellant's
main contentions, we note as follows:
1. The AJ did not abuse her discretion in issuing a RD without a hearing,
as she found there was no genuine dispute as to material facts.
2. While appellant contended that he should not have been subject to
the cut-off score of the selection panel and that his name should have
been forwarded to the selecting official, it is not his prerogative but
rather the agency's to choose a system for evaluating job candidates
for a particular position, as long as the system is applied in a
nondiscriminatory manner or is not otherwise motivated by proscribed
factors. See Loeb v. Textron, Inc., 600 F.2d 1003, 1012, n.6 (1st
Cir. 1979). Here the rating score was based on how well each candidate
answered the interview questions, which were the same for all candidates.
3. Similarly, the agency was within its rights to pick candidates from
the MPP Register, as well as the AFNSS Register. Loeb, supra.
Doing so did not violate agency policy, as appellant contends, because
the policy was changed by memorandum stated July 1, 1994, well before
candidates were selected in 1996.
4. Although appellant argued that he was better qualified than the
selectee by virtue of years of agency service, years of experience do
not necessarily make an individual more qualified to meet the needs of
the organization, McGettigan v. Department of the Treasury, EEOC Appeal
No. 01924372 (Feb. 24, 1993); or automatically make one candidate more
qualified than another, Ford v. Department of Health and Human Services,
EEOC Appeal No. 01913521 (Decision. 19, 1991). While appellant's
management experience and skills were narrowly technical, the selectee
had broader management experience and skills and was a better fit for
the agency's requirements, as reflected in the interview rating scores
(34 for the selectee and 15 for appellant). While appellant contended
that he was rated lowest in retaliation for challenging the selection
process that allowed candidates from the MPP Register to complete, the
panel's interview notes showed that appellant's communication skills
were below average and that while he possessed knowledge of the program
areas, he had a negative attitude, rambled, and did not provide in depth
responses to the interview questions as to his management skills. Thus we
concur with the selection panel members that appellant's rating score
was justified based on his poor responses to interview questions.
5. Finally, the Commission finds no evidence that the selectee was
chosen in furtherance of affirmative action goals, as appellant asserts.
To the contrary, the selecting official testified that he was not
instructed to select a certain candidate because of affirmative action
goals and that he did not instruct the selection panel to recommend this
type of candidate. The preponderance of the evidence does not support
appellant's contention that diversity goals played a deciding role
in the selection decision. The deciding officials were able to point,
with great specificity, to the interview responses and achievements of
the selectee which resulted in their judgment that she was the better
qualified candidate. The Commission, therefore, concludes that appellant
has failed to prove that the reasons given by the agency for its selection
were a pretext to mask discrimination.
It is, accordingly, the decision of the EEOC to AFFIRM the agency's
final decision in this matter.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Dec 10, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations