Complainant,v.Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

May 22, 2013

0120120574 (E.E.O.C. May. 22, 2013)

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

,
Complainant,

v.

Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120120574

Agency No. 2008-21932-FAA-04

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal1

from the
September 25, 2008 final Agency decision (FAD) concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.
BACKGROUND

At the time of events giving rise to this complaint, Complainant was a former employee and an
applicant for employment for two Airway Transportation Systems Specialist positions.
Complainant initially applied under Vacancy Announcement No. ACE-ATO-08-025-100041
(Position 1), which stated that the announcement was only open to applicants currently
employed by the Agency. Complainant applied for the second position under Vacancy
Announcement ACE-ATO-08-047-100650 (Position 2), which was open from November 27,
2007 until December 11, 2007, and only open to applicants within the local commuting area of
the Olathe, Kansas duty location.

1 In October 2011, Complainant resubmitted his October 8, 2008 appeal which he claims the
Commission never docketed. In addition, Complainant submitted illegible copies of Priority
Mail delivery confirmation receipts to show that his original appeal to the Commission was
timely. The Commission notes that the Agency failed to challenge the timeliness of the instant
appeal. Accordingly, the Commission accepts the appeal as timely.
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On November 13, 2007, Complainant supplemented his applications with requests for
reasonable accommodation. For Position 1, Complainant requested that the Agency consider
his prior supervisor’s endorsement for a similar position and a November 2004 performance
evaluation. In addition, Complainant requested that the Agency remove the internal candidate-
only requirement in the vacancy announcement and consider him as reinstatement-eligible. For
Position 2, Complainant requested that his application be accepted under “VRA DVAAP 30%
or more disabled on the spot hire,” that his application be considered as reinstatement-eligible,
and that his veterans’ preference be considered.

On February 5, 2008, Complainant received notification that he was not qualified for Position
1 because he was not a current Agency employee. Additionally, the letter informed
Complainant that he was not qualified for Position 2 because was not an applicant within the
local commuting area.

On February 7, 2008, Complainant requested that the Agency reconsider its disqualification
decisions. Complainant claimed that he should have been considered for Position 1 because of
his veterans’ preference status. Further, Complainant stated that he should be considered for
Position 2 because if selected, he could live at his sister’s home in Willis, Kansas which was
20 miles away from the duty location. On February 25, 2008, the Employment Services
Branch Manager (M1) informed Complainant that the available evidence supported the initial
determination of his ineligibility for the two positions.

On April 1, 2008, Complainant filed a formal complaint alleging that the Agency discriminated
against him on the bases of disability and in reprisal for prior protected EEO activity when in
February 2008, his requests for a reasonable accommodation to be considered for selection
under Vacancy Announcement Nos. ACE-ATO-08-025-100041 and ACE-ATO-08-047-100650
were denied.

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant requested a FAD. In accordance with Complainant's request, the
Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b) on September 25, 2008.

In the FAD, the Agency assumed arguendo that Complainant had established a prima facie
case of discrimination and reprisal and determined that management articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, Complainant was not considered for
the positions at issue because he did not meet the minimum qualifications regarding areas of
consideration. For Position 1, Complainant was found ineligible because he was not a current
Agency employee and the announcement was only open to current Agency employees. For
Position 2, the announcement stated that it was only open for applicants within the commuting
area and Complainant’s address was approximately 120 miles away. Therefore, Complainant
was ineligible for consideration for either position.

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The Agency concluded that Complainant had presented no evidence that managements’ reasons
for its actions were pretextual. As a result, the Agency found that Complainant had not been
discriminated or retaliated against as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency’s finding of no discrimination or reprisal
was in error. Complainant argues that the Agency should have granted his accommodation
requests and considered him for the positions. Complainant further contends that he should not
have been disqualified for Position 2 because he lives less than 120 miles away from the duty
location and the Agency should have granted his request to use his sister’s address.
Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Requests for Reasonable Accommodation

The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630. In order to establish that Complainant was denied a reasonable
accommodation, Complainant must show that: (1) he is an individual with a disability, as
defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to
29 C.F. R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation.
See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002).

Under the Commission's regulations, an agency is required to provide a reasonable
accommodation to a qualified applicant with a disability that will enable the individual to have
an equal opportunity to participate in the application process and to be considered for a job,
unless it can show undue hardship. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002,
Question 13 (as revised Oct. 17, 2002).

Here, assuming arguendo that Complainant is an individual with a disability within the
meaning of the Rehabilitation Act, the Commission concludes that Complainant was not
qualified for the positions to which he applied. A qualified individual with a disability is an
individual with a disability who satisfies the requisite skill, experience, education and other
job-related requirements of the employment position such individual holds or desires, and who,
with or without reasonable accommodation, can perform the essential functions of the position.
29 C.F.R. § 1630.2(m). Regarding Position 1, the vacancy announcement clearly stated that
only current Agency employees were eligible for consideration. ROI, Tab F6. Complainant
was not employed by the Agency at the time of his application and thus did not meet the
eligibility requirements stated in the vacancy announcement.

0120120574

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Regarding Position 2, the vacancy announcement stated that only applicants within the local
commuting area would be considered. ROI, Tab F7. The Agency defined “commuting area”
as “one or more population centers in which people live and can reasonably be expected to
travel back and forth daily to their usual place of employment.” ROI, Tabs F9, F16. The
record reveals that Complainant lived over 100 miles away from the duty location and
therefore lived outside of the local commuting area. ROI, Tab F1, at 7, Tab F2, at 4. As a
result, Complainant did not meet the eligibility requirements for this position stated in the
vacancy announcement.2

Accordingly, the Commission finds that the Agency did not fail to
accommodate Complainant in violation of the Rehabilitation Act.
Disparate Treatment/Reprisal

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 23, 1997). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351
(Dec. 14, 1995).

In the instant case, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as discussed above, Complainant was
not considered for either position because he did not meet the eligibility requirements stated in
the vacancy announcements. Regarding Position 1, Complainant was found ineligible because
the position was only open to current Agency employees and Complainant was a former
Agency employee. ROI, Tab F2, at 3-4. With respect to Position 2, Complainant was found
ineligible because the position was only open to applicants within the local commuting area and
the address listed on Complainant’s application was over 100 miles away. Id. at 4.

2 Even if the Commission considered Complainant’s February 2008 request that the Agency
reconsider and use his sister’s residence as his address a request for reasonable
accommodation, the record reflects that the vacancy announcement closed on December 11,
2007. The application process, and therefore the Agency's obligation to provide a reasonable
accommodation to Complainant, an applicant, effectively ended on December 11, 2007. See
Toland v. Office of Pers. Mgmt., EEOC Appeal No. 0120081214 (June 9, 2011).
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Complainant later offered an alternative address closer to the duty location; however, the
announcement had closed and a selection had been made. Id.

Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. at 256. The Commission finds that the record is devoid of any persuasive
evidence that Complainant’s protected classes were factors in the Agency's actions. At all
times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the
evidence that the Agency's reasons were not the real reasons and that the Agency acted on the
basis of discriminatory or retaliatory animus. Complainant has failed to carry this burden.
Accordingly, the Commission finds that Complainant has failed to show that he was
discriminated or retaliated 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 decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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 (Nov. 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
0120120574

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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

May 22, 2013
Date