George Tuominen, Complainant,v.Ray LaHood, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMar 31, 2009
0120083940 (E.E.O.C. Mar. 31, 2009)

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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