Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Sep 4, 2014

0120131030 (E.E.O.C. Sep. 4, 2014)

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

,
Complainant,

v.

Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120131030

Agency No. DOT 2012-24432-FAA-06

DECISION
Complainant filed an appeal from the Agency’s December 3, 2012 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. For the following reasons, the Commission AFFIRMS the Agency’s Final
Decision, finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management and
Program Assistant at the Agency’s Oakland Air Route Traffic Control Center (ARTCC) in
Fremont, California. On April 10, 2012, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of race (Asian) and national origin
(Filipino) when:

On February 21, 2012, Complainant learned that he was not selected for the
position of Administrative Office Manager (FV-0301-I) advertised under
Vacancy Announcement No. AWP-ATO-12-14AKNN-23073.

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 EEOC
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b).

In its Decision, the Agency found that Complainant established a prima facie case of
discrimination on the bases of race and national origin. Complainant applied for the identified
0120131030

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position and Complainant was found qualified for the position. Complainant received an
interview and Complainant was not selected. The selectee was not in Complainant’s protected
groups.

The Agency found, however, that the selectee was found to be the superior candidate by the
selecting official, as well as by the panel members conducting the interviews with
Complainant, the selectee and a third qualified candidate. The Agency also conducted
interviews with the supervisors of the candidates. The Agency found that the selectee scored
higher than Complainant in every weighted metric tallied by the panel and demonstrated
effective oral and written communication skills during the selection process.1

The Agency
found that Complainant did not show that his qualifications were plainly superior to those
possessed by the selectee.
The Agency considered Complainant’s claim that the selection panel was composed entirely of
White Agency officials. The Agency found that the selecting official himself was a Native
American and that the panel was comprised of Agency officials who would be working with
the selected candidate. The Agency also considered Complainant’s contention that the panel
members asked a question that he believes was not job related and called for a subjective
answer. Complainant claims that asking the candidates, “Why do you want to be an Office
Manager? Why at [Oakland]?” was not an appropriate inquiry for the panel to make. The
Agency found that all three candidates were asked the same questions and the questions were
used to determine what motivated the candidates to apply for the identified position.

The Agency found that the selectee had the supervisory experience, demonstrated
communication skills and qualifications that the Agency desired and was considered by one
panel member to be “head and shoulders” above Complainant by the end of the selection
process. The Agency’s Final Decision concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

On appeal, Complainant claims that the report of investigation was deficient in several respects
including missing the EEO Counselor’s report. Additionally, Complainant states that the
Agency failed to consider Complainant’s ten-point Veterans’ Preference in calculating his score
after the selection process.

On appeal, the Agency supplies the documents missing from the report of investigation and
states that the omissions were harmless error. The Agency adds that because this selection
process was FAA-wide only, Veterans’ Preference does not apply, and that neither
Complainant’s private sector, nor his military experience were considered. The Selectee’s
private sector experience was similarly not considered in the selection process.

1 The Agency weighted the parts of the application process as follows: interview (40%),
leadership dimensions/KSAs (30%); supervisor’s interviews (20%); and experience/education
matrix (10%).
0120131030

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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. (November 9, 1999) (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”).
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he or she 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, 411 U.S. at 804 n. 14. 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). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks

, 509 U.S. 502, 519 (1993).
Complainant may be able to establish pretext with a showing that his qualifications were
plainly superior to those of the selectee. Wasser v. Dep’t of Labor, EEOC Request No.
05940058 (November 2, 1995); Bauer v. Baitar

, 647 F.2d 1037, 1048 (10th Cir. 1981).
As a preliminary matter, we concur with the Agency the omissions in the report of
investigation the Agency were harmless and that the Agency properly supplied the missing
documents on appeal. We find the investigation was adequate.

We find the record supports the Agency’s Final Decision. We note specifically that in their
statements, and as largely reflected in the interview notes, each of the panel members found
the selectee’s communication skills to be noteworthy and effective. We find that the candidate
interviews as well as the supervisor interviews were heavily weighted in the selection process
and that the same criteria applied to all of the candidates. Significantly, we find one panel
member noted that Complainant did not answer the interview questions fully and completely.
Another panel member considered the selectee’s interview better because the selectee was
“articulate, and answered the questions more precisely and completely.” We find, as did the
Agency, that while Complainant was qualified for the position, he did not show that his
qualifications were plainly superior to those possessed by the selectee or that the Agency’s
reasons for its selection were a pretext to mask discrimination. Even if we assume that the
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Agency improperly failed to grant Complainant Veterans’ Preference, such a failure is not
indicative of discrimination based on race or national origin.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s Final Decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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

(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”
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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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

Date
September 4, 2014