Debroah C.,1 Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Feb 3, 2016

0120140261 (E.E.O.C. Feb. 3, 2016)

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

Debroah C.,1
Complainant,

v.

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

Appeal No. 0120140261

Agency No. 2012-24683-FAA-04

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated August 26,
2013, finding no discrimination concerning her 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, we AFFIRM the Agency’s final decision finding no
discrimination.

BACKGROUND

In her complaint, dated December 7, 2012, Complainant alleged discrimination based on race
(African American) and color (dark skin) when:

(1) On July 5, 2012, she learned that she was not selected for the Lead Program
Specialist (LPS), FV-0301-J, advertised under Vacancy Announcement No. AGL-
AC-12-0003-25231; and

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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(2) On October 3, 2012, she learned that she was not selected for the position of
Special Programs Integrator (SPI), FV-0301-J, advertised under Vacancy
Announcement No. AGL-ARC-12-0005-28321.

After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing. The Agency thus issued its final Agency decision concluding 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 established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period at issue, Complainant was
employed by the Agency as a Facility Security Specialist, GS-1801-13, in the Agency’s
Chicago Aircraft Certification Office (ACO), Great Lakes Regional Office, in Des Plaines,
Illinois.

With regard to claim (1), a Selecting Official (SO1) indicated that the Human Resources Office
initially identified 15 qualified candidates for the LPS position at issue and three panel
members interviewed those 15 qualified candidates, including Complainant, and asked them
the same questions. Based on the candidates’ resume/application questionnaires and
interviews, the panelist ranked the candidates and referred the top six candidates, including
Complainant, to SO1 for further consideration. SO1 indicated that Complainant was not
selected for the LPS position since her ranking score was the lowest, total score of 54, among
the top six candidates and selected a selectee who ranked the highest, total score of 74. The
record indicates that at the time of the selection, i.e., July, 2012, the selectee held the position
of Supervisory Hazardous Materials Specialist, GS-14, since November, 2007. Another factor
cited by S01 is that the selectee would not need a promotion for the selection, unlike
Complainant. Upon review, Complainant failed to show that her qualifications for the position
were plainly superior to the selectee’s qualifications. See Wasser v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995).

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With regard to claim (2), Complainant acknowledged that she did not apply for the SPI
position at issue because its vacancy was open only to the Agency’s Office of Regions and
Center Operations (ARC) employees and she was an ARC employee. A Selecting Official
(SO2) indicated that the decision to limit the applicant pool to current ARC employees was a
budgetary decision. Specifically, SO2 stated that in order to stay within the budgeted full-time
position ceiling level, she decided to limit the applicant pool to ARC current employees to
essentially identify a well-qualified candidate for the SPI position at issue without increasing
the full time employee headcount. SO2 confirmed that Complainant did not apply for the SPI
position at issue.

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. Based on the foregoing, we find
that Complainant failed to show that the Agency’s actions were motivated by discrimination as
she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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
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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

February 3, 2016
Date