01A13130
03-10-2003
Jerry A. Johnson v. Department of Transportation
01A13130
March 10, 2003
.
Jerry A. Johnson,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A13130
Agency No. 6-00-6072
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Supervisory Traffic Management Coordinator (STMC) at the
agency's Seattle Air Route Traffic Control Center (ARTCC), Northwest
Mountain Region, FAA, Seattle, Washington facility. Complainant sought
EEO counseling and subsequently filed a formal complaint on May 13,
2000, alleging that he was discriminated against on the bases of race
(African-American) and color (Black) when he was not selected for any
of six vacant Operations Mangers positions on March 31, 2000.
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 time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant has established
his prima facie in that he is a member of protected classes by virtue
of his race, African-American, and color, Black. He applied for and
was found qualified for the position. He was not selected, and the
five selectees were Caucasian or American Indian/Alaskan Native and
White. However, the agency found that management articulated legitimate,
non-discriminatory reasons for its action. Specifically, the agency found
that the selecting official (SO) considered the results of the reviews
of the applications by the two review and evaluation panels in terms of
each candidate's breadth of experience, leadership, business management,
labor and employee relations, communication skills, operations management,
and facility specific needs. The agency also found that the SO selected
the five candidates with the highest scores. The agency noted that
complainant was ranked 12 among 15 applicants, and complainant's total
average score was 1.8. The agency further found that the selectees'
scores were: selectee A, 2.8; selectee B1, 2.8; selectee B2, 2.7;
selectee C, 2.2; selectee D, 2.2; and selectee E, 2.3.
Complainant makes no new contentions on appeal.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). A complainant must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited reason was a factor in the adverse employment action.
McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Furnco Construction
Corp v. Waters, 438 U.S. 567 (1978). Next, the agency must articulate a
legitimate, nondiscriminatory reason for its action(s). Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981). After the
agency has offered the reason for its action, the burden returns to the
complainant to demonstrate, by a preponderance of the evidence, that the
agency's reason was pretextual, that is, it was not the true reason or
the action was influenced by legally impermissible criteria. Burdine,
450 U.S. at 253; 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
the complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. Of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
Assuming arguendo, that complainant established a prima facie case of
discrimination based on his race and color, the Commission finds that
the agency has articulated a legitimate, nondiscriminatory reason for
its actions. Specifically, we find that complainant was not selected
because he was not one of the top six candidates for the open positions.
The record reveals that each candidate was rated by the panel,
with a score of one to three, in the areas of experience, leadership,
business, labor, relations, communications management, and local factors.
The record reveals that complainant ranked 12 among 15 applicants with a
total average score of 1.8. The record also reveals that the selectees
received higher scores than complainant. The record further reveals
that complaint did not score well in leadership because of prior history
of not ensuring adequate coverage prior to approving shift changes for
others and not personally following and enforcing facility policies,
such as the food and drink policy and compensatory time usage policy.
The burden returns to complainant to establish that the agency's
explanation was a pretext for discrimination. Upon review, the
Commission finds that the complainant has failed to do so. In reaching
that conclusion, we noted that complainant merely argues that he was
more qualified for the position because he has been a GS-15 since 1986.
We find that complainant failed to prove that he was more qualified than
the selectees for the positions at issue or that the selection process
was motivated by discriminatory animus. The Commission notes that
in nonselection cases, pretext may be found where the complainant's
qualifications are demonstrably superior to the selectee's. Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). We conclude that
complainant failed to show that the agency's action was a pretext for
discrimination.
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 (M0701)
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 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 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 (S0900)
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
March 10, 2003
__________________
Date