Leroy Wigfall, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionMar 17, 2003
01A21232 (E.E.O.C. Mar. 17, 2003)

01A21232

03-17-2003

Leroy Wigfall, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.


Leroy Wigfall v. Department of Transportation

01A21232

March 17, 2003

.

Leroy Wigfall,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

(Federal Aviation Administration),

Agency.

Appeal No. 01A21232

Agency No. 5-00-5010

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 in part and REVERSES in part, the agency's final decision.

The record reveals that during the relevant time, complainant was employed

as an Aviation Safety Inspector, FG-1825-13, at the Dallas/Fort Worth

Business Center at the DFW Airport in Texas. Complainant applied for

seven promotional bids between February 1997 and December 1999 and was

not selected for any position. Believing he was discriminated against,

complainant sought EEO counseling and subsequently filed a formal

complaint on October 29, 1999, alleging that he was discriminated against

on the basis of his race (African-American) when he was not selected

for the following Aviation Safety Inspector positions:

(1) ASW-FS-97-059-14615, February 1997;

(2) ASW-FS-97-061-14617, February 1997;

(3) ASW-FS-97-198-17408, May 1997;

(4) ASW-FS-97-234-18298, May 1997; and

(5) ASW-FS-99-169-44711, April 1999.

The record reveals that subsequently, on January 28, 2000, the agency

accepted complainant's amendment to include two additional allegations

of race discrimination regarding complainant's nonselection for the

following promotions:

(6) ASW-FS-00-033-48089, December 1999; and

(7) ASW-FS-00-034-48092, December 1999.

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. Complainant

initially requested a hearing, however, he subsequently requested that

the AJ issue a decision on the record. The AJ returned the complaint

to the agency for issuance of a final decision.

In its FAD, the agency concluded that complainant failed to establish

a prima facie case of discrimination. The FAD further concluded

that assuming, arguendo, complainant established a prima facie case,

the agency nevertheless articulated legitimate, nondiscriminatory

reasons for its actions; namely, the best-qualified candidates

were selected. Specifically, as to positions (1), (2) and (3),

the selecting official (S1) stated that he did not recall complainant

being qualified or interviewed. As to (4), the selecting official (S2)

stated that complainant was qualified and was interviewed, however,

he did not present his skills effectively during the interview and

lacked the technical background needed for the position. As to (5),

the FAD found that complainant qualified and was referred, but was

not selected because he was not the best-qualified candidate given

that the selectees had more experience and education. As to (6), the

FAD found that complainant again qualified and was referred, but not

selected because complainant was not the best-qualified candidate based

on his presentation skills and experience. As to (7), the FAD found

that complainant again qualified and was referred, but the position was

cancelled and filled with an in-grade candidate who had the experience

needed for the position. The FAD concluded that complainant failed to

establish that these reasons were pretextual.

Complainant makes no new contentions on appeal. The agency requests

that we affirm its FAD.

As an initial matter we note that, as this is an appeal from a FAD issued

without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's

decision is subject to de novo review by the Commission. 29 C.F.R. �

1614.405(a). The allocation of burdens and order of presentation of proof

in a Title VII case alleging disparate treatment discrimination are a

three step procedure: complainant has the initial burden of proving, by

a preponderance of the evidence, a prima facie case of discrimination;

the burden then shifts to the employer to articulate some legitimate,

non-discriminatory reason for its challenged action; and complainant must

then prove, by a preponderance of the evidence, that the legitimate reason

offered by the employer was not its true reason, but was a pretext for

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

We begin by addressing item (5). Complainant established a prima facie

case of discrimination because the selectee was not in complainant's

protected class. However, the agency articulated legitimate,

nondiscriminatory reasons for not selecting complainant; namely,

complainant was not the best-qualified candidate given that the selectees

had more experience and education. As to (6), complainant failed to

establish a prima facie case of race discrimination, because the selectee

is a member of complainant's protected class. As to (7), complainant

failed to establish a prima facie case of discrimination, in that the

individual who received the position (A1) was not similarly-situated to

complainant; A1 was an in-grade candidate who requested, and was granted,

a reassignment to the position after the job announcement was cancelled.

See Report of Investigation (ROI), Tab 26. The agency submitted the

promotional bid packages as evidence in support of its articulated

reasons. See id., Tabs 21-27. Complainant has not established, by a

preponderance of the evidence, that the agency's reasons were pretexts

for race discrimination.

The 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 Department of Community

Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department 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. Department of Labor,

EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d

1037, 1048 (10th Cir. 1981). The evidence of record fails to indicate

that complainant, although well-qualified for the promotions in items

(5), (6) or (7), had �plainly superior� qualifications as compared with

the selectees for the positions.

We now turn to addressing items (1) through (4). Initially, complainant

established a prima facie case of race discrimination because all of

the selectees were outside of his protected class. The agency cited

complainant's lack of qualifications as reasons for not awarding

complainant the promotions in items (1), (2) and (3). The record is

devoid of evidence to substantiate the proposition that complainant

lacked qualifications or that he was an inferior candidate as compared

with the selectees. As to (4), the selecting official cited complainant's

inferior �technical background� compared to the selectees', as well as his

failure to �present his skills effectively� during the interview. Again,

the record is devoid of any evidence in support of these statements.

The Human Resources Coordinator states that the relevant files for the

1997 promotions are �[u]navailable and have been destroyed.� See ROI,

Tab 19.

We are cognizant that the agency's burden to articulate a legitimate

non-discriminatory reason for its actions is not an onerous one.

In the case at hand, however, the record is without any independent

evidence that demonstrates that complainant was less qualified than the

selectees for the positions in items (1) through (4), because the agency

has failed to provide the relevant files. Consequently, the Commission

finds that the agency has failed to set forth, with sufficient clarity,

reasons for complainant's nonselection for promotions (1) through (4) such

that he has been given a full and fair opportunity to demonstrate that

those reasons are pretext. See Parker v. United States Postal Service,

EEOC Request No. 05900110 (April 30, 1990): Lorenzo v. Department of

Defense, EEOC Request No. 05950931 (November 6, 1997). The agency

has therefore failed to provide an articulation of its reasons for not

selecting complainant for the position in question sufficient to overcome

complainant's prima facie case of discrimination. See Prevo v. Federal

Deposit Insurance Corporation, EEOC Appeal No. 01972832 (March 10, 2000).

After a careful review of the record, and for the reasons set forth above,

we AFFIRM the agency's finding of no discrimination with respect to items

(5), (6) and (7), but REVERSE as to items (1) through (4). We note that

complainant has raised a cognizable claim for compensatory damages when

he requested, in his formal complaint, to be granted all relief to which

he was entitled under Title VII. Accordingly, we REMAND this case to

the agency to take remedial actions in accordance with this decision

and Order below.

ORDER

The agency is ORDERED to take the following remedial actions:

(1) The agency shall promote complainant to the position of Aviation

Inspector, FG-14, or a substantially equivalent position retroactive to

the date of the first nonselection (February 1997), no later than thirty

(30) calendar days after the date this decision becomes final.

(2) The agency shall determine the appropriate amount of back pay

(with interest, if applicable) and other benefits due complainant,

pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar

days after the date this decision becomes final. The complainant shall

cooperate in the agency's efforts to compute the amount of back pay and

benefits due, and shall provide all relevant information requested by

the agency. If there is a dispute regarding the exact amount of back

pay and/or benefits, the agency shall issue a check to the complainant

for the undisputed amount within sixty (60) calendar days of the date

the agency determines the amount it believes to be due. The complainant

may petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

(3) Within fifteen (15) days of the date this decision becomes final, the

agency shall give complainant a notice of his right to submit objective

evidence (pursuant to the guidance given in Carle v. Department of the

Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim

for compensatory damages within forty-five (45) calendar days of the date

complainant receives the agency's notice. The agency shall complete the

investigation on the claim for compensatory damages within forty-five

(45) calendar days of the date the agency receives complainant's claim

for compensatory damages. Thereafter, the agency shall process the

claim in accordance with 29 C.F.R. � 1614.108(f).

(4) The agency shall train the responsible management officials identified

as being responsible for the nonselections in 1997 regarding their

obligations under Title VII.

(5) The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of backpay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER

The agency is ordered to post at its Dallas/Fort Worth Business Center at

the DFW Airport in Texas, copies of the attached notice. Copies of the

notice, after being signed by the agency's duly authorized representative,

shall be posted by the agency within thirty (30) calendar days of the

date this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H1092)

If complainant has been represented by an attorney (as defined by 29

C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable

attorney's fees incurred in the processing of the complaint. 29 C.F.R. �

1614.501(e). The award of attorney's fees shall be paid by the agency.

The attorney shall submit a verified statement of fees to the agency --

not to the Equal Employment Opportunity Commission, Office of Federal

Operations--within thirty (30) calendar days of this decision becoming

final. The agency shall then process the claim for attorney's fees in

accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (KO501)

Compliance with the Commission's corrective action is mandatory. The

agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 19848, Washington,

D.C. 20036. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant.

If the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant has

the right to file a civil action on the underlying complaint in accordance

with the paragraph below entitled "Right to File A Civil Action." 29

C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil

action on the underlying complaint is subject to the deadline stated

in 42 U.S.C. 2000e- 16(c) (1994 & Supp. IV 1999). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 29

C.F.R. � 1614.409.

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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 17, 2003

__________________

Date