0120083940
03-31-2009
George Tuominen, Complainant, v. Ray LaHood, Secretary, Department of Transportation, Agency.
George Tuominen,
Complainant,
v.
Ray LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120083940
Agency No. 2007-21177-FAA-04
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 25, 2007 final decision concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant, a former agency employee, was
an applicant for the position of Air Traffic Control Specialist (ATCS)
in fourteen agency facilities.1 Specifically, complainant listed the
following fourteen facilities he would consider placement under Vacancy
Announcement Number ACE-ATO-06-SPP2152-85692M: Champaign, Illinois (CMI),
Sanford, Florida (SFB), Vero Beach, Florida (VRB), Dupage, Illinois
(DPA), Peoria, Illinois (PIA), Palomar, California (CRQ), Montgomery,
California (MYF), Deep Valley, Arizona (DVT), David Wayne Hooks, Texas
(DWH), Bristol, Tennessee (TRI), Columbia, South Carolina (CAE), Dallas
Love, Texas (DAL), Houston Hobby, Texas (HOU) and Falcon Field, Arizona
(FFZ).
On April 12, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the basis of age (40) when:
on February 21, 2007, he was not selected for the position of ATCS
advertised under Vacancy Announcement Number ACE-ATO-06-SPP2152-85692M.
The record reflects that according to the agency, out of the fourteen
facilities complainant listed he would consider placement, four selections
were made of which two candidates declined. The record further reflects
that all of the selectees were older than complainant (ages 44, 50,
50 and 60, respectively). Furthermore, the record reflects that the
other ten facilities made no selections.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision on October 25,
2007, pursuant to 29 C.F.R. � 1614.110(b).
In its October 25, 2007 final decision, the agency found
no discrimination. The agency concluded that complainant failed to
establish a prima facie case of age discrimination. The agency further
found that even assuming complainant established a prima facie case
of age discrimination, he failed to show that management's articulated
reasons for not selecting him were a pretext for discrimination.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Based on the standard set forth in McDonnell Douglas and Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979) (requiring a showing that age was a
determinative factor, in the sense that "but for" age, complainant would
not have been subject to the adverse action at issue), we agree with
the agency that complainant did not establish a prima facie case of age
discrimination under a disparate treatment theory. We note that evidence
in the record reflects that out of the fourteen facilities complainant
listed he would consider placement, four selections were made of which
the selectees were older than complainant.
After a review of the record in its entirety, including consideration
of all statements 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 (M1208)
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), 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 (S0408)
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 (Z1008)
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
March 31, 2009
__________________
Date
1 The record reflects that effective October 3, 2005, complainant was
separated from his Air Traffic Control Specialist FV-2152-H position
via Reduction-in Force.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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