0120140882
10-09-2014
Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120140882
Hearing No. 410-2013-0019X
Agency No. 9R1M12028
DECISION
Complainant timely filed an appeal from the Agency's September 13, 2013, final order 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence supports the EEOC Administrative Judge's (AJ) finding that Complainant failed to prove that he was subjected to national origin discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Aircraft Mechanic, WG-10, at Robins Air Force Base in Georgia. Complainant has worked with the Agency since late 2004.
Complainant applied for the position of Aircraft Mechanic, WG-10/11, in or about October 2011. The Agency deemed Complainant qualified for the position. He was one of 46 applicants interviewed for the position.
The Agency's Resource Advisor initially awarded points to applicants based on their appraisals, awards, and education/training. Applicants could receive up to 30 total points on this portion of the selection process. Complainant received ratings of "3" for appraisals and "7" for awards, the maximum ratings for those elements. However, Complainant received a "zero" out of 20 points in the element of education/training. Consequently, Complainant received only 10 points for this initial stage of the selection process.
A four-member panel then interviewed and evaluated the applicants. During the interview, each applicant was rated on four questions. The first question asked applicants to describe their experience in removing, installing, modifying, troubleshooting and/or repairing aircraft systems and components. The second question asked applicants to describe the use of hand tools and power tools. The third question asked applicants to describe their experience working with live aircraft, including engine operations and the removal and insulation of associated components. The fourth question asked applicants to describe their experience using safety practices and rules of procedure for maintaining a safe and clean environment around live aircraft. Additionally, applicants received up to five points for their communication skills during the interview. Applicants could receive up to 70 total points for their interviews. Complainant was interviewed by the panel on December 1, 2011, and received an interview score of 27.4 points.
The panelists then individually assigned interview scores to the applicants, which were input into a selection matrix that included the scores for applicants' appraisals, awards, and education. Complainant received a total score of 37 points, and was not selected for a position. The Agency chose 20 applicants for the position; the selectee with the lowest score received 40 points.
On February 27, 2012, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the basis of national origin (Hispanic) when, on or about December 15, 2011, the Agency failed to select him for the position of Aircraft Mechanic, WG-10/11, under vacancy announcement number 11OCT814430.
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 AJ. Complainant timely requested a hearing, which the AJ held on April 12, 2013.
During the hearing, Complainant testified that he was born in Puerto Rico, speaks Spanish, and considers himself Hispanic. Complainant further testified that he has never had a problem with understanding English or being able to perform his job duties. Complainant stated that he has worked with live or operational airplanes his entire career. Complainant further testified that the only difference between WG-10 and WG-11 Aircraft Mechanics is that WG-11s have "engine runner" responsibilities, which is a special skill that involves driving the airplane on the flight-line while other airplanes are landing.
Complainant further testified that, during the interview, a panelist (P1) who previously had supervised him snickered when Complainant said that he had good communication skills. Complainant testified that he thought that he had a "little more experience" than some of the selectees.
P1 testified that none of the panelists discussed Complainant's communication skills, and he did not snicker at Complainant during the interview. P1 testified that he thought that Complainant did not answer interview questions to the fullest and therefore did not receive the maximum points. For instance, for the first question, P1 testified that Complainant only said that he troubleshot fuel systems, but did not explain what he troubleshot with in-depth examples. With respect to question two, P1 testified that Complainant only named tools and parts, but he did not describe how he used the tools in performing aircraft maintenance. Regarding question three, P1 testified that Complainant did not talk about working with live aircraft. Regarding question four, P1 testified that Complainant did not explain the "confined space process." Regarding the communication element, P1 testified that Complainant used a lot of "filler words, distraction words" during the interview, including "ah" and "um."
Another panelist (P2) testified that he gave Complainant 30 total points on his interview because Complainant did not have broad experience in troubleshooting aircraft systems; had a limited degree of experience in engine operation and removal of components; listed tools he used, but did not specify what he used them on; and rambled for five minutes about "general stuff."
The third panelist (P3) testified that he gave Complainant 26 points on his interview because he never discussed the systems in-depth; did not explain how he used tools on aircraft; and did not explain what he did on the engine run. P3 further testified that Complainant said "ah" a lot during his interview. P3 stated that he did not recall P1 laughing during the interview. The fourth panelist (P4) testified that during the interview, Complainant did not explain how he used tools. P4 also testified that he did not recall P1 laughing during the interview.
The Selecting Official testified that Complainant was not selected for the position because he scored about eight or ten places below the cutoff score for the 20 positions. He stated that he did not participate in the interviews, but he chaired the panel. The Selecting Official testified that he looked at the panel's scoring sheets and signed-off as the selecting official.
On August 8, 2013, the AJ issued a decision in which he found that Complainant did not establish that he was subjected to national origin discrimination. Specifically, the AJ found that Complainant established a prima facie case of national origin discrimination, but did not prove that the Agency's non-discriminatory explanations were pretext for unlawful discrimination. The AJ further found that Complainant did not prove that P1 laughed at him during the interview, or that his accent was a factor in his non-selection. The Agency subsequently issued a final order fully adopting the AJ's finding.
CONTENTIONS ON APPEAL
Complainant does not raise any arguments on appeal. The Agency requests that we affirm its final order.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
In this case, we assume for purposes of analysis, without so finding, that Complainant established a prima facie case of national origin discrimination. Nevertheless, we find that the Agency provided legitimate, non-discriminatory explanations for its actions. Specifically, the Agency stated that Complainant was not selected because he did not receive a score that placed him within the top 20 candidates for a position. The Agency further stated that Complainant did not receive a higher total score because he did not answer interview questions to the fullest and sometimes rambled with filler words such as "um" and "ah." We note that all of the selection panelists testified and gave specific examples of Complainant failing to give detailed answers to the questions, as detailed above.
Complainant contends that P1 snickered at him during the interview. However, we note that all other witnesses denied this claim. Moreover, even assuming that P1 laughed at Complainant during the interview, there is no evidence that this reflected animus against Complainant's national origin. Finally, we note that Complainant received a "zero" in the initial scoring elements in the category of education/training because his application or career brief did not reflect that he had any formal training. We find that Complainant has not established that the Agency's explanation is a pretext for unlawful discrimination
CONCLUSION
Upon review of the record, and for the foregoing reasons, we find that substantial evidence supports the AJ's conclusion that Complainant has not shown that he was subjected to national origin discrimination. Accordingly, we AFFIRM the Agency's final order.
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" 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
October 9, 2014
Date
2
01-2014-0882
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140882