Justin P., Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Jul 26, 2017

0120151131 (E.E.O.C. Jul. 26, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Justin P.,
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120151131

Agency No. 2014-25790-FAA-01

DECISION

The Commission accepts Complainant’s appeal from the January 20, 2015, final Agency
decision (FAD) concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Infrastructure
Protection Specialist at the Agency’s Southern Regional Office in College Park, Georgia. On
May 9, 2014, the Agency posted a vacancy announcement for a Program Analyst – Regional
Emergency Planner under Vacancy Announcement No. ANE-ARC-14-080-35385. The vacancy
announcement listed vacancies in three duty locations: Atlanta, Georgia; Fort Worth, Texas; and
Renton, Washington. Complainant applied online at USAJOBS for the position in Atlanta. The
vacancy announcement noted that the area of consideration was limited to Agency ARC
(Regions and Center Operations) employees only. Complainant subsequently received an email
from USAJOBS notifying him that he was not referred because the vacancy announcement was
limited to ARC employees and he was outside the area of consideration.

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.
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On July 31, 2014, Complainant filed a formal complaint alleging that the Agency discriminated
against him on the bases of disability and age (64) when, on June 13, 2014, he learned that he
was assessed as not qualified for the position of Program Analyst – Regional Emergency
Planner, advertised under Vacancy Announcement No. ANE-ARC-14-080-35385.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
FAD. In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency determined that Complainant failed to establish a prima facie case of
disability discrimination, but had demonstrated a prima facie case of age discrimination. Next,
the Agency found that management had articulated legitimate, nondiscriminatory reasons for its
actions. More specifically, the Agency’s limitation of the pool of applicants to the ARC area of
consideration in its initial vacancy announcement was made to further the Agency’s five-year
Optimization Initiative to provide ARC employees with an opportunity to apply for end-state
positions. Since Complainant was not an ARC employee, he was found ineligible for the
position, and he was not referred to the selecting official. The Program Manager explained that
it has been a standard practice during her tenure to first post vacancies to ARC employees before
opening the area of consideration to all Agency employees nationwide. When the first vacancy
announcement failed to yield a sufficient number of candidates within ARC employees,
management decided to re-post the announcement with an Agency-wide area of consideration.

The Agency concluded that Complainant failed to show that management’s reasons were
pretextual. As a result, the Agency found that Complainant had not been discriminated against
as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he established a prima facie case of disability and age
discrimination. Complainant claims that the Agency’s Optimization Initiative violated EEO
statutes and policies and excluded qualified applicants. Additionally, Complainant argues that
the FAD is not supported by facts. Further, Complainant claims that the Agency failed to use its
own tools for consideration to ensure that highly qualified individuals were considered.
Accordingly, Complainant requests that the Commission reverse the FAD.

2 The record reflects that during the investigation, Complainant withdrew race as a basis of
discrimination.
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ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, assuming arguendo that Complainant established a prima facie case of
disability and age discrimination, the Commission finds that Complainant failed to present
evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. In
particular, the Human Resources Specialist stated that once the vacancy for the position at issue
closed in May 2014, she reviewed each applicant’s eligibility. ROI, at 61. The position was
open to ARC Service Center and Regional employees only. Id. Complainant was outside of the
area of consideration and was not referred for further consideration. Id. The Program Manager
explained that ARC was under an Optimization Initiative moving ARC regions and service
centers toward a standardized end-state staffing chart. Id. at 68. Agency management tried to
ensure that ARC service centers/regional employees were provided the opportunity to apply for
these end-state positions; therefore, management made it standard practice to post vacancies to
the affected ARC employees first before opening the area of consideration to include other
Agency employees. Id. Management decided that the pool of referred candidates was too small
under the initial vacancy announcement and opened the area of consideration to get a wider pool
of qualified applicants. Id. at 69. On June 20, 2014, the Agency issued a second vacancy
announcement open to all Agency employees. Id. at 123.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant chose not to request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. The Commission
finds no persuasive evidence that Complainant's protected classes were a factor in any of the
Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by
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a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the
Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden.

Finally, to the extent Complainant may be arguing that the Agency’s decision to limit the area of
consideration for the position at issue had a disparate impact on older applicants or applicants
with disabilities, the Commission finds that Complainant did not provide any evidence, beyond
mere assertions, to support an actionable disparate impact claim. See Watson v. Fort Worth
Bank & Trust, 487 U.S. 977, 994 (1988) (the complainant must present “statistical evidence of a
kind and degree sufficient to show that the practice in question has caused the exclusion”). As a
result, the Commission finds that Complainant has not established that he was subjected to
discrimination as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted 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 (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
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agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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

July 26, 2017
Date