0120170571
09-11-2018
Doretta F.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Doretta F.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120170571
Hearing No. 570-2015-00762X
Agency No. 2014-25946-FAA02
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 24, 2016, final decision concerning her 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, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that she was subjected to discrimination as she alleged.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was discriminated against based on her race when on September 4, 2014, she learned that she was not selected for the position of Supervisory Human Resources Specialist.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Human Relations Specialist at the Agency's Benefits Operations Center, Benefits and Work Life Division, OHRM, in Kansas City, Missouri. The Agency posted a vacancy for the position of Supervisory Human Resources Specialist. In April 2014, Complainant applied for the position, was referred for selection and interviewed. The position was reposted in August 2014, and five applicants, including Complainant were referred for selection. Complainant was not selected for the position. A white female from outside the Agency was selected. Complainant maintained that when she asked why she had not been selected, she was told that she needed to remain in her current position because someone had to train new hires. Complainant was also told that another reason why she might have not been selected was because someone in the Southeast Region had complained about their interactions with her. Complainant indicated that she was not given any specific information about the complaint, nor was she given the opportunity to defend herself. Complainant indicated that since she began working in 2010, she has been an asset to the office and to management. Complainant believed that the selecting official was partial to white females and had promoted several of them within a period of one year.
Therefore, on January 17, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of race (African-American) when she was not selected for the Supervisory Human Resources Specialist position.
Following an investigation by the Agency, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant withdrew her request for a hearing and instead requested a FAD. Thereafter, a FAD was issued finding that Complainant did not establish that she was discriminated against. Specifically, the Agency explained that while it found that both Complainant and the Selectee were qualified for the position, the deciding factor was that the Selectee had led an operational component, which was exactly what the office was setting up. The focus was on the Selectee's leadership in an organization which serviced over 300,000 employees, and her experience with consolidating Human Resources programs. The Agency indicated that leadership was the most important aspect of the job position because the individual selected would be leading leaders, many of whom needed coaching and mentoring. The Agency found that the Selectee had a demonstrated ability to bring a team together and to operate in a strategic manner.
In comparison, management indicated that as Complainant was employed in the office, management was able to assess her leadership capabilities. Management observed and received complaints about the Complainant's general attitude with coworkers and customers, and she was known to be unapproachable and not a team player. Management addressed this issue with Complainant several times. Complainant denied management's concerns regarding her behavior but admitted that her supervisor had mentioned an incident to her. As such, management indicated that they chose the Selectee based on her experience with the type of program that it was setting up and her experience dealing with multiple supervisors. The Agency found that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
Neither Complainant nor the Agency provided a brief on appeal.
ANALYSIS AND FINDINGS
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. We find that even if we assume arguendo that Complainant established a prima facie case of race discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that the Selectee was selected over Complainant because even though they both possessed the knowledge and skills necessary for the position, the Selectee had more experience in managing a consolidated center, had worked on a consolidation team, and had five-years of experience supervising a consolidated center at two different Federal agencies. Management indicated that it selected the Selectee because they were seeking an individual who could lead and oversee the work of subordinate supervisors, and as the Agency was in the final phase of consolidation, they needed someone to evaluate current practices and make recommendations. Management also indicated that Complainant was not selected because she had some complaints about her being too harsh with her subordinates. To show pretext, Complainant argued that once the Selectee started she kept her door closed and was not able to answer technical questions. We find that Complainant has not demonstrated that the Agency's reasons were pretext for discrimination, as there was no way that management would have known how the Selectee would actually perform in the position. We find that other than Complainant's conclusory statement that race was a factor, she has provided no evidence which shows that race was a factor in her nonselection.
Further, an employer has the discretion to choose among equally qualified candidates. See Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). Absent proof of a demonstrably discriminatory motive, EEOC will not second-guess an Agency's personnel decision. See Burdine, 450 U.S. at 259. The EEOC simply has neither the authority nor the capacity to stand as the super-personnel department for the Agency. Only personnel decisions that are idiosyncratic or suspect are subject to heightened scrutiny because deviations from standard procedures without explanation or justification are sufficient to support an inference of pretext. See Andre v. Dep't of Defense, EEOC Appeal No. 01994562 (Feb. 22, 2002); Hovey v. Dep't of Housing & Urban Dev., EEOC Appeal No. 01973965 (Aug. 31, 2000). However, in the instant case, we see no such suspect action here. Therefore, we find that the preponderance of the evidence of record does not establish that discrimination occurred.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that she was subjected to discrimination.
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.
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
_9/11/18_________________
Date
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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