Israel J.,1 Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.Download PDFEqual Employment Opportunity CommissionJan 6, 20160120142840 (E.E.O.C. Jan. 6, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Israel J.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120142840 Hearing No. 450-2014-00002X Agency No. DOT/2013-25091-FAA-05 DECISION Complainant filed an appeal from the Agency’s July 5, 2014 final order 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. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Senior Aviation Safety Inspector at the Agency’s Manufacturing Inspection District Office in Fort Worth, Texas. He had applied for promotion to Aviation Safety Inspector – Manufacturing (ASIM), but was notified on February 28, 2013, that he would not be offered the job. On May 21, 2013, he filed an EEO complaint in which he alleged that his second-line supervisor, the Manufacturing Inspection Office Manager, in his capacity as the Selecting Official (SO) discriminated against him on the basis of age (54) by not selecting him. 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. 0120142840 2 The SO testified that he selected two individuals (hereinafter referred to as Selectee 1 and Selectee 2) to fill the ASIM vacancies, and that he based his decision on the candidates’ written application packages, their performances in telephonic interviews, references they received from current or former supervisors, and the needs of the office. The SO convened two panels: one to review the written applications and the other to conduct the interviews. Investigative Report (IR) 91. The chart below shows the rankings provided by the Review Panelists (RPs), the numerical ratings provided by the Interview Panelists (IPs) and references from the candidates’ then-current supervisors as to their recommendations on whether to hire. Review Panel Rankings Interview Panel Ratings Supervisory RP1 RP2 RP3 IP1 IP2 IP3 Reference Complainant Third First NR2 50 55 54 Highly Recommend Selectee (1) First Second NR 54 53 54 Recommend Selectee (2) Second Third NR 48 45 46 Highly Recommend Candidate (4) NR NR NR 55 56 51 Recommend IR 294, 296, 298, 300, 313-24, 326-37, 339-50, 354-65, 367-78, 380-91, 393-404, 406-17, 419-30, 434-45, 446-69, 621-22, 625, 627-28, 631. The SO averred that based upon this information, he chose Selectee (1) and Selectee (2), and that Complainant and Candidate (4) were his third and fourth choices, respectively. IR 92-93, 633, 637, 649. At the conclusion of the investigation, the Agency notified Complainant of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but over his objections, the AJ assigned to the case granted the Agency’s March 3, 2014 motion for summary judgment and issued a decision on July 1, 2014, without holding a hearing. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to age discrimination as alleged. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s decisions involving personnel selections unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to warrant a hearing on his claim of disparate treatment in connection with his unsuccessful bid for promotion, Complainant would have to present enough evidence to raise a genuine issue of material fact as to whether his age was a determining factor in the SO’s decision not to select him. See 29 C.F.R. § 1614.109(g); 2Review Panelist (3) did not rank any of the candidates, but had given Complainant and the two Selectees the highest marks in the individual ranking criteria for the applications. Review Panelists (1) and (2) ranked only the top three candidates. 0120142840 3 Haralson-Bleggi v. Department of the Interior, EEOC Appeal No. 0120100040 (October 29, 2010) citing Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993). The Commission has long held that an agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may be able to establish pretext with a showing that his qualifications were plainly superior to those of the selectee. Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Baitar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant has failed to make this showing. We do not find any persuasive evidence that Complainant was so better qualified for the positions than the selectees that discrimination could be inferred from his non-selection. The record also does not show that the interview panel members or the selecting official considered Complainant’s protected bases with regard to his nonselection at any time in the selection processes. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. 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. 0120142840 4 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 January 6, 2016 Date Copy with citationCopy as parenthetical citation