0120170563
08-22-2018
Clement D.,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
Clement D.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120170563
Agency No. 2016-26692-FAA-05
DECISION
On December 1, 2016, 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 3, 2016, final decision 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 final decision.
ISSUES PRESENTED
Whether Complainant was discriminated against based on disability (Chronic Kidney Disease) and reprisal (prior protected EEO activity) under Title VII of the Civil Rights Act of 1964, Section 501 of the Rehabilitation Act of 1973, when he was not referred to the Selecting Official for the position of Technical Publications Writer.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management & Program Assistant FV-344-F at the Agency's Dallas Love Field SSC facility in Dallas, Texas. On May 13, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (Chronic Kidney Disease) and reprisal (prior protected EEO activity) when he was not referred to the Selecting Official for the position of Technical Publications Writer.
Complainant applied for the position of Technical Production Writer in October 2015. He was told his name was not referred for selection because his resume did not show he had experience in collecting and analyzing data, and he had not held an H-band position for at least one year.
Complainant stated that his resume showed a pattern of technical writing experience with his development of a new work card with the associated preventative maintenance procedures for Satellite Communications Maintenance Technicians. In addition, he maintained he had been responsible for writing and promulgating the requirements for the microwave links for a three-state area, wrote and edited local switch interconnect and site safety procedures, developed operations and maintenance procedures, which were published and used by a prior employer, developed site specific operational procedures, including writing and editing maintenance procedures, developed business statements and production proposals directed toward NASA engineers, and, inter alia, wrote evaluations and analyses of special airfield improvement projects and a number of other technical writing experiences.
Complainant believed his non-referral was related to his disability and/or reprisal for his EEO activity because when he was hired management was well aware of his Stage 4 Chronic Kidney Disease (CKD). He was placed in the outside Environmental Systems Unit (ESU), maintaining power, air conditioning, and runway lighting at DFW Airport.
Complainant contends that as a result of constant joint pain caused by the digging, climbing and lifting required by his work, he requested a transfer to the Communications SSC, for which he had over 20 years' experience, as well as military and civilian technical training. During this period, Complainant filed several grievances against management for harassment. Complainant stated the Agency only offered him a reassignment as a FV-F, with no promotion potential and at a location more distant from his home, but still within the local area. He contends that he was told more than once that if he did not take the position, he would be "let go" by FAA. Complainant stated that he felt coerced into accepting the position.
A-1, Management and Program Analyst, FV-343-I, in the Air Traffic Organization was on detail as a Human Resources (HR) Specialist in the HR Employment Branch, ASW Human Resources Management Office, at the time of the events of this complaint, and was the HR Specialist in charge of processing the Technical Production Writer position, advertised under Vacancy Announcement (VA) No. ASWATO-16-PR102-45166. She asserted that she was unaware of Complainant's disability or prior EEO activity. She states the VA indicated candidates had to show a minimum of one year of experience at the next lower (H-band) level, and as she was not able to substantiate that Complainant met that requirement, his name was not referred for selection.
A-1 stated the experience did not have to be in positions where technical writing was the sole or primary duty, but the applicant had to demonstrate in his resume the actual duties performed (i.e., hands-on experience) and that they were equivalent to the next lower level of specialized experience. A-1 stated that while Complainant indicated in his resume that he performed non-FAA work developing "procedures," he only gave very sketchy descriptions of that work. Specialized experience at the next lower level would have required substantial subject matter or technical knowledge of the field and would have demonstrated the ability to acquire and present technical information through independent reading, interviews with subject-matter specialists or other appropriate methods. Such experience could have been acquired as a writer or editor of technical reports, articles, manuals or specifications at the next lower level. She stated Complainant did not elaborate in detail what he actually did in the positions related to the vacancy.
A-1 agreed that Complainant held an FV-2101 position at the H-band level, but noted the duties of that position were maintenance of facilities and systems, and did not usually involve developing or writing policy for the agency, as was required for the position at issue. She stated as for the language, "performs independent preparation of advisory materials, directives, and memoranda in a factual, logical, sequential final format in compliance with regulatory guidance" which Complainant included in descriptions of positions in his resume, A-1 stated it seemed Complainant simply "plugged in" wording from the announcement, but did not explain what he did or why it was appropriate experience.
A-1 stated that she corresponded with Complainant by email and explained to him why he did not meet the minimum experience level requirement. She noted that not only did the HR Specialist responsible for the first announcement of the position at issue find Complainant did not meet the minimum experience requirement, but the HR office had a third HR Specialist review Complainant's application, who validated the determination that Complainant did not meet the minimum experience requirement.
The Agency selected C-1. C-1 was found to have had the required experience. The record shows that C-1 held positions in which he performed H Band writing at Job Category, level 3 and I Band writing at level 4.
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. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant, through counsel, filed a brief, basically setting forth his experience and assertions that his background and experience qualified him for the position, and that he should have been selected. Complainant also argues that his continuing deterioration due to his disability was a factor in the Agency's decision not to refer him for the position.
ANALYSIS AND FINDINGS
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").
Discrimination based on Disability and Prior EEO Activity
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 in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. 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. Texas 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 Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming for purposes of this decision that Complainant established a prima facie case of discrimination based on his disability and reprisal, we find that the Agency articulated a legitimate, non-discriminatory reason for not referring him or selecting him for the position advertised. The Agency found that Complainant did not possess the required experience necessary for the position.
The record indicates that C-1, along with fifteen (15) other candidates, was referred to the selecting official for consideration. C-1 had the required experience set forth in the Vacancy Announcement. He was experienced at performing H Band writing at Job Category, level 3 and I band writing at Job Category, level 4. C-1 was chosen as the more qualified candidate for the promotion over all other applicants referred for consideration. Complainant has not provided evidence demonstrating that the selection of C-1 was a pretext for discrimination.
Although Complainant believed that his experience made him more qualified for the position than the selectee, we do not find that his qualifications were so superior to those of C-1 that discrimination was the more likely motive. Consequently, we do not find pretext here. We note that employers have broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by a reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final 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
_8/22/18_________________
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.
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