Blake H.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Railroad Administration), Agency.

Equal Employment Opportunity Commission

Jun 20, 2019

0120181413 (E.E.O.C. Jun. 20, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Blake H.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Railroad Administration),
Agency.

Appeal No. 0120181413

Hearing No. 570-2016-01471X

Agency No. 201626712FRA02

DECISION

On March 12, 2018, 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
February 15, 2018, final order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for employment
with the Agency in Reading, Pennsylvania. Complainant applied for a Railroad Safety Inspector
position advertised under Vacancy Announcement No. FRA.R2-2016-0011. Complainant stated
he was not referred for further selection consideration on the List of Eligible Candidates because
the Agency’s Human Resources Department determined that he did not qualify for the advertised
position because he did not meet the specialized experience requirements for the job. Complainant
believed that there was no reason for him to have not been found qualified because he had been
deemed qualified for the very same position in previous postings.

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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The Human Resources Specialist (HRS) stated that she posted the vacancy announcement and
referred the applications to the subject matter expert (SME) for eligibility determinations for each
candidate. SME determined that Complainant did not meet the specialized experience requirement
and recommended that HRS deem him not qualified for the position. SME explained that he was
seeking applicants with knowledge and experience working with the Agency’s regulatory practices
and procedures, as set forth in the Code of Federal Regulations. Complainant’s resume indicated
he had experience utilizing the Agency’s railroad operating rules and standards, but only identified
experience investigating railroad derailments for a “plant railroad” that did not fall under the
Agency’s jurisdiction and where the Agency’s railroad operations and procedures did not apply.
SME further noted that the candidates he recommended to Human Resources for qualification met
the specialized experience requirement. SME added that at the time he reviewed the candidates’
resumes, the names of the candidates were redacted, and there was no indication of age in the
submissions. Based on SME’s written determination, HRS accepted the recommendation and
informed Complainant that he did not meet the specialized experience requirements of the position.

On May 9, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of age (71) when he learned that he was rated “disqualified” for the
position of Railroad Safety Inspector, advertised under Vacancy Announcement No. FRA.R2-
2016-0011.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing
and over Complainant's objections, issued a summary judgment decision in favor of the Agency
on February 12, 2018. 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 followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that his due process rights were denied when he was denied a
hearing. Complainant contends that he established a prima facie case of age discrimination and
Agency officials provided untruthful statements. Complainant argues he had more experience than
the selectee. Complainant believes that officials added his birthdate to the file and considered it
in making their selection decision. Accordingly, Complainant requests that the Commission
reverse the final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g).
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This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The Supreme Court has held that summary judgment is
appropriate where a court determines that, given the substantive legal and evidentiary standards
that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function
is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id.
at 249. 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.

Upon review of the record, the Commission determines that there are no genuine issues of material
fact or any credibility issues which required a hearing and therefore the AJ's issuance of summary
judgment was appropriate.

Disparate Treatment

To prevail in a disparate-treatment claim absent direct evidence of discrimination, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of
establishing a prima facie case by demonstrating that she was subjected to an adverse employment
action under circumstances that would support an inference of discrimination. Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the
facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n. 13. The burden then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant
bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason
proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); see also
Spencer v. U.S. Postal Serv., EEOC Appeal No. 0120042065 (Aug. 6, 2003) (applying framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to ADEA claim).

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. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June
28, 1990); Peterson v. Dep't. of Health and Human Servs., EEOC Request No. 05900467 (June 8,
1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, the AJ granted summary judgment to the Agency on the ground that Complainant had failed
to adduce evidence establishing a prima facie case of discrimination.
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The AJ determined that the Agency officials who decided that Complainant would not be selected
for the position in question were not aware of the ages of Complainant and the selectee. Our
review of the record supports the AJ’s analysis. The officials involved in the selection process
deny knowing the ages of Complainant and the selectee. ROI at 106-07, 110-11. The materials
they reviewed in making their decision do not reveal those ages. Id.

Furthermore, even assuming that Complainant established a prima facie case of age discrimination,
we agree with the AJ that the Agency articulated legitimate, nondiscriminatory reasons for the
determination regarding Complainant’s qualification for the position. Specifically, SME affirmed
that nothing in Complainant's resume indicated that he had experience utilizing the Agency’s
railroad operating rules and standards, as set forth in the Code of Federal Regulations to investigate
the cause of serious railroad accidents. ROI at 111-12. SME affirmed that Complainant only
identified experience investigating railroad derailments for a “plant railroad” that did not fall under
Agency jurisdiction and where Agency railroad operations and procedures did not apply. Id. at
112. SME maintained that every person he recommended to Human Resources for qualification
met the specialized experience requirement. Id. For example, SME affirmed that the resume of
the eventual selectee indicated that he performed railroad accident investigations for three years
for a “general railroad system,” which fell under Agency jurisdiction and its regulatory practices,
procedures, and standards. Id. HRS stated that she accepted SME’s recommendation and advised
Complainant that he did not meet the specialized experience requirements for the position. Id. at
106. SME noted that an applicant may have multiple resumes that differ for the various positions
for which the applicant applies, and the differing resumes may result in different qualification
determinations. Id. at 107.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence in the record which would support a finding that the selection process was tainted by
discriminatory animus or that the reasons articulated by the Agency for its actions were mere
pretext to hide unlawful discrimination. Complainant failed to rebut the Agency's reasons with
persuasive evidence that would undermine the Agency's explanation. Accordingly, the
Commission finds that Complainant has failed to show that he was discriminated against as
alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency's final order, because the Administrative Judge's grant of summary judgment was
appropriate, and a preponderance of the record evidence does not establish that discrimination
occurred.

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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.
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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

June 20, 2019
Date