0120092964
12-09-2009
Joan E. Hendrix, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Joan E. Hendrix,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120092964
Agency No. 2007-21572-FAA-05
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 4, 2009 final decision concerning an equal
employment opportunity (EEO) complaint claiming 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 relevant period, complainant was an applicant for the position
of Statistician, FV-1530-G/H, advertised under Vacancy Announcement
Number: AAC-NOC-7-AFS630-3711.
On September 26, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against her
on the basis of age (over 40) when she was not selected for the subject
position.
At the conclusion of investigation, complainant was provided with a copy
of the report of the investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing; however, she subsequently withdrew her request.
Consequently, the agency issued the instant final decision pursuant to
29 C.F.R. � 1614.110(b).
In its June 4, 2009 final decision, the agency found that complainant
established a prima facie case of age discrimination because the selectee,
outside of complainant's protected class, was selected for the position of
Statistician, GV-1530-G/H. The agency found, however, that management
articulated legitimate, nondiscriminatory reasons for complainant's
non-selection which complainant failed to show were a pretext.
The record reflects that the merit selection certificate listed
five qualified candidates, including complainant, for the position
of Statistician, FV-1530-G/H. The record further reflects that three
candidates out of the five were interviewed, and complainant was one of
the three candidates. The selecting official (SO) stated that he sought
someone "who had fifteen semester hours in statistics (or in mathematics
and statistics, provided at least six semester hours were in statistics)
and nine additional semester hours in one or more of the following:
physical or biological sciences, medicine, education, or engineering;
or in the social sciences including demography, history, economics,
social welfare, geography, international relations, social or cultural
anthropology, health sociology, political science, public administration,
psychology, etc. OR Combination of educational and experience: courses
as shown [above], plus appropriate experience or additional education."
SO stated that he and two other managers served on the interview panel;
and the candidates were scored using a set of questions asked of the
panel.
Following the interviews, SO stated that he chose the selectee for the
subject position because she had the highest score of 183. SO stated,
however, that the selectee "declined the position because her current
employer matched or exceeded my salary offer." SO stated that the
candidate with the second highest score "was subsequently offered the
statistician position in my organization." The record reflects that
the second selectee (S2) had the second highest score of 170, while
complainant was ranked third with overall score of 160. SO stated that
he did not select complainant for the subject position because "when
the scores were totaled, [complainant] did not have the highest score."
SO stated that his selection "was based solely and only on the highest
scoring applicant based on the duties and selection criteria found in
the vacancy announcement."
Complainant asserted that the panel was biased in favor of S2 who
was the daughter of their friend and co-worker. However, SO denied
this assertion. SO acknowledged that S2's father "used to work in the
Flight Standards organization where my branch is located." However, SO
stated that S2's father "did not in any way, manner, or fashion contact
me directly or indirectly regarding his daughter's application for a
position in my organization." Furthermore, SO stated that he did not
discriminate against complainant based on her age.
One of the panelists (P1) stated that SO "developed a standard set of
ranking criteria that was used by a panel to evaluate the interviewed
applicants. Each panel member provided [his or her] ranking scores
to the selecting official to be used in the decision making process."
P1 further stated that he was not involved in the selection process and
has no knowledge of the selection process beyond the interviews.
On appeal, complainant argues that the agency "did not adhere to its own
instructions for scaling the rated interview scores." Complainant further
argues "it is time to put such deceptive uses of data and statistics to
rest in cases of discrimination [emphasis in the original]."
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).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. We further find that
complainant has not demonstrated that these reasons were a pretext for
discrimination.
Complainant, on appeal, has provided no persuasive arguments indicating
any improprieties in the agency's findings. Therefore, 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
December 9, 2009
__________________
Date
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0120092964
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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