01990761
09-08-2000
Gregory Evans, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Gregory Evans v. Department of Transportation (FAA)
01990761
September 8, 2000
.
Gregory Evans,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01990761
Agency No. 4-97-005
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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.<1> Complainant alleged that he was
discriminated against on the basis of race (Black) when: (1) the agency
requested a waiver of his non-competitive priority placement rights to the
position of Supervisory Airway Transportation System Specialist (SATSS) at
the agency's Springfield, Illinois, System Support Center (SSC); and (2)
on or about September 4, 1996, he was not competitively selected for the
SATSS position. The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the agency's FAD is AFFIRMED.
The record reveals that during the period at issue, complainant was
initially employed as a GS-2101-13 Airway Transportation System Specialist
(ATSS) at the Illinois Airway Facilities Sector in Springfield, Illinois.
Complainant was notified on July 5, 1995, that, effective September
30, 1995, he would be administratively reassigned as the result of an
agency realignment to the position of GS-2101-13 ATSS at the Crossroads
System Management Office in Indianapolis, Indiana. The agency informed
complainant that in order to remain with the agency, he could either
accept the reassignment or make a voluntary request for reassignment
to a vacant ATSS (NAS Specialist) position in Champaign, Illinois.
Complainant was informed that if he requested the voluntary reassignment,
he would be downgraded to a GS-12 level, but would retain the same pay.
Complainant decided to accept the ATSS position at the Champaign facility,
and the reassignment became effective September 30, 1995. Complainant
claims he was discriminated against when, after the realignment, the
agency requested a waiver or exception to his priority placement rights
to the SATSS position at the agency's Springfield SSC facility.
In 1996, the agency subsequently opened the position of SATSS at the
Springfield SSC for competitive bids, and while complainant was one of
the five best qualified candidates for the position, he was not selected.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on October 23, 1996.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. When complainant
failed to respond within the regulatory time period, the agency issued
a FAD.
In its FAD, the agency concluded that complainant established a prima
facie case of race discrimination, as he is a member of a protected
group and the agency took adverse employment actions against him in
that: (1) he was not accorded priority placement to the SATSS position
at the Springfield SSC since an exception to his priority placement
rights was requested; and (2) he was qualified for the SATSS position
at the Springfield SSC but was not selected when it was advertised on a
competitive basis. However, the FAD found that the agency articulated
legitimate, nondiscriminatory reasons for its actions. Initially, the FAD
found that regarding the request for an exception to priority placement,
a similarly situated White male (also a GS-13 ATSS) also had been the
subject of an exception request due to his lack of supervisory experience.
The FAD further found that the evidence established that the selectee
for the SATSS position had a more extensive supervisory background than
complainant and the Customer Recommendation Panel (CRP) had given him a
better overall recommendation than complainant. The FAD concluded that
complainant failed to meet his burden in establishing that the agency's
articulated reasons were a pretext for discrimination. On appeal,
complainant contends that the FAD failed to address the agency's reasons
for not selecting him. The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the Commission finds that complainant failed
to establish a prima facie case of race discrimination regarding the
agency's request for a waiver or exception for priority placement rights
to the SATSS position and its failure to accord him priority placement
for the position. In so finding, we note that the agency also requested
a waiver and did not accord priority placement to a similarly situated
employee not in complainant's protected group; thus complainant was not
treated less favorably than a person outside his race. Agency records
reveal that the Selecting Official for the SATSS position requested an
exemption from placing either complainant or the other employee (White
male) in the position on the basis that the ATSS positions each held
before the realignment did not provide them with adequate supervisory
experience to be placed in the position non-competitively. Exhibits F6,
F10. Regarding claim (2), the Commission agrees with the FAD's finding
that complainant established a prima facie case of race discrimination
with regard to his failure to be competitively selected for the SATSS
position at the agency's Springfield SSC since he is a member of a
protected group, was placed on the Best Qualified list for the position
and was not selected in favor of an employee outside his protected group.
However, we find that the evidence establishes that the agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that the
selectee was chosen as he had more experience as a supervisor than did
complainant and had been given a higher overall recommendation for the
position by the CRP based on his job experience and interview answers.
Exhibits F11-F14. Further, we agree with the FAD that these reasons have
not been established to be a pretext for discrimination. In so finding,
the Commission notes that the CRP was comprised of four members, including
a Black SATSS, and all members agreed that the selectee was the best
qualified candidate. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 8, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.