Deangelo C.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.Download PDFEqual Employment Opportunity CommissionSep 19, 20180120161657 (E.E.O.C. Sep. 19, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deangelo C.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120161657 Agency No. 2015-26449-FAA-02 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated March 18, 2016, finding no discrimination concerning his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On September 21, 2015, Complainant filed his complaint alleging discrimination based on race (African – American), sex (male), age (over 40), and in reprisal for prior EEO activity when on July 20, 2015, despite his “Priority Consideration” status, he learned that he was not selected for the positions of: (1) Supervisory Airway Transportation System Specialist advertised under Vacancy Announcement Number (VAN) AEA-ATO-15-IMS-41960; 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. 0120161657 2 (2) Airway Transportation System Specialist advertised under VAN AEA-ATO-15-IMS- 42940; and (3) Management Analyst advertised under VAN AEA-ATO-15-IMS-42856. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency then issued its final Agency decision finding no discrimination. The Agency found that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. 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 (EEO MD-110), Chap. 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"). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. At the time of events, Complainant, a former Agency employee, was an applicant for employment at the Agency. Complainant indicated that he applied for the Supervisory position in claim (1) on May 28, 2015, the Airway Transportation System Specialist position in claim (2) on July 23, 2015, and the Management Analyst position in claim (3) on August 4, 2015, online through the USA Jobs Aviator System. Since the online system did not allow for the submission of priority consideration documentation, Complainant submitted his 2007 priority consideration documents to Agency Human Resources (HR) Specialist. Upon submission of his online applications for the foregoing vacancies, he received an automated status reply informing him that applications from non-FAA employees were not being accepted and it was determined that he was not a FAA employee; thus, he was deemed ineligible for the vacancies. The HR Specialist indicated that she only reviewed a system-generated list of eligible candidates based on the basic qualifications and did not review any applicants that were found ineligible and vetted out by the system based on their responses to the basic qualifying questions. She stated that Complainant was found to be ineligible and, thus, was not included in a certification list to be forwarded to the facility posting the vacancy. Specifically, Complainant was rated ineligible by the USA Jobs Aviator System because he was outside the area of consideration for the position as he was not a current FAA employee. She indicated that if an applicant had priority consideration, then the applicant would have needed to reply “yes” to the question that asked if the applicant was applying under Selection Priority Program. Complainant failed to do so. 0120161657 3 Furthermore, the HR Specialist noted that although Complainant submitted some documents that had a notation about priority consideration back in 2007, he did not submit any official Priority Consideration documentation supporting his claim of priority consideration status. We note that Complainant’s priority consideration status is not at issue and Complainant is not alleging breach of any possible EEO settlement agreement. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. After a review of the record, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 0120161657 4 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 September 19, 2018 Date Copy with citationCopy as parenthetical citation