Ricky W. Baird, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionJul 19, 2000
01963981 (E.E.O.C. Jul. 19, 2000)

01963981

07-19-2000

Ricky W. Baird, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Ricky W. Baird v. Department of Transportation

01963981

July 19, 2000

Ricky W. Baird, )

Complainant, )

) Appeal No. 01963981

v. ) Agency No. DOT 93-0198

)

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

____________________________________)

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission

from a final agency decision (FAD) concerning his allegations that the

agency violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. �

2000e et seq. Complainant alleges that the agency discriminated against

him on the basis of sex (male) when he was not selected for the position

of Assistant Manager for Training (AMT), GM-2152-15, and when the agency

impermissibly took into account the sex of the applicants in making

the selection. The appeal is accepted pursuant to 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).<1> For the

following reason, we affirm the FAD.

On March 15, 1993, complainant, then a Quality Assurance Specialist,

(GS-2152-14), filed a formal complaint against the agency. Complainant

asserted that, under the agency's affirmative action plan (AAP), it

was predetermined that a female employee would be selected for the AMT

position in the agency's Chicago O'Hare Tower. The agency conducted an

investigation and provided complainant with a copy of the Investigative

Report. Complainant requested an immediate FAD which the agency issued

on March 26, 1996, finding no discrimination. It is from this decision

complainant now appeals.

Complainant applied for the AMT position at O'Hare and was placed on the

"Best Qualified" list by the three-person panel charged with developing

a list from which the selecting official (SO) could make his decision.

Ultimately, the panel generated an alphabetical list of seven candidates,

five males and two females, for submission to SO. SO chose the selectee

(SE), a female, for the AMT position. According to SO, it was clear

that SE was the "top contender" for the post after he considered the

following factors: (1) background; (2) career progression; and (3)

interpersonal relationships.

SO explained that complainant and SE were substantially comparable with

regard to the three factors. To reach his decision, SO paid special

attention to each candidate's supervisory and management experience.

Ultimately, successful management experience was deemed of paramount

importance. SO concedes that complainant probably had more management

experience. However, SE had also garnered significant experience as

a manager while distinguishing herself by rewriting the facility

training manual and using her strong interpersonal skills to stand

out as a leader. SO's decision was also influenced by feedback he

received from complainant's former supervisor stating that complainant

was confrontational in his dealings with others.

On appeal, complainant maintains that he should have been selected

because: (1) the panel gave him a score of 169.75 as opposed to

SE's score of 109.25; (2) he had more extensive tower experience at

different airports; and (3) he received higher ratings on performance

appraisals. Therefore, complainant asserts that the reasons for SE's

selection were pretextual. Complainant claims that he was told by SO

on December 30, 1992 that he was not selected for the position because

of the agency's major emphasis on recruiting females and minorities

and because complainant was perceived as not working well with people.

Complainant also contends that SO stated that he wished he could have

selected him but that the Air Traffic Manager (ATM) had the final word.

Complainant further asserts that SO was told by ATM that complainant would

never get a GM-15 post at O'Hare and that execution of the AAP required

hiring minorities and females when they rank among the best qualified.

Complainant also contends that his former supervisor's assessment of him

as "confrontational" is not supported by his employment evaluations.

In response, the agency asserts that complainant cannot establish pretext.

The agency relies on SO's statement in which he averred that sex was

only one of the considerations in selecting SE and that he was never

directed by ATM to select a female or minority candidate. With regard

to complainant's challenge of the agency's AAP, the agency explains

that the plan was valid insofar as it attempted to remedy the under

representation of females in the skilled craft occupation and did not

promulgate quotas. Additionally, the agency qualified complainant's score

of 169.75 by stating that two other candidates on the "Best Qualified"

list had higher overall scores than complainant.

Based on the standards set forth in McDonnell Douglas Corp. v. Green,

411 US. 792 (1973), complainant may establish a prima facie case of

discrimination by demonstrating that he was subjected to an adverse

employment action under circumstances which, if left unexplained,

raise an inference of unlawful motivation. Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). The agency must then

rebut the presumption of discrimination raised by the prima facie case

by articulating a legitimate, nondiscriminatory reason for its action.

Id. at 254. Once the agency rebuts the prima facie case, the burden

returns to complainant to prove that the agency's proffered explanation

is either unworthy of belief or is so unsupported by the record that

discrimination was the more likely motivation. Id. at 256.

The Commission finds that complainant has established a prima facie case

of discrimination by showing that (1) he belongs to a protected group;

(2) he applied, was qualified, and was considered for the position; (3)

he was not selected for the position; and (4) a person not of his group

was selected. Keyes v. Secretary of the Navy, 853 F.2d 1016, 1023 (1st

Cir. 1988). As an explanation for not selecting complainant, SO stated

that he evaluated each of the seven candidates with regard to background,

career progression, and interpersonal relationships. Initially, SE and

complainant's qualifications were substantially comparable. However,

upon review of the documentation submitted on each candidate, SE stood

out as the "top contender" on the basis of her significant and successful

managerial experience at O'Hare and her strong interpersonal skills.

SO explained that although SE's selection was based primarily on her

qualifications, the agency's AAP was "a consideration.�

When an agency considers its affirmative action goals in selecting a

candidate for a job, the Commission must determine whether the plan

is valid under the criteria developed by the Supreme Court in Johnson

v. Transportation Agency of Santa Clara County, California, 480 U.S. 616,

627 (1987); United Steel Workers of America, AFL-CIO-CLS v. Weber, 443

U.S. 193, 208-209 (1979). The burden of proving the AAP invalid rests

with the complainant. See Bragdon v. Department of Agriculture, EEOC

Request No. 05890700 (April 25, 1990). Complainant's only contention is

that ATM's mandate to promote women and minorities established an absolute

bar to his advancement at O'Hare. The record indicates that ATM expressed

his hope that the agency promote minorities and women who are on the "Best

Qualified" list. However, SO made the ultimate personnel decision. Thus,

complainant's claim that SO wanted to promote complainant or was ordered

by ATM not to promote complainant to the GM-15 position is not supported

by the record. Accordingly, the Commission finds that complainant failed

to demonstrate that the AAP was in violation of Title VII.

With regard to complainant's qualifications, though the record shows that

complainant sufficiently satisfied the job requirements for placement

on the "Best Qualified" list, we do not find that complainant's

qualifications were "so plainly superior as to require a finding

of pretext." Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).

Further, as in this case, an employer has greater discretion when

choosing a management level employee. Wrenn v. Gould, 808 F.2d 493, 502

(6th Cir. 1987). The record further reveals that, complainant, despite

his extensive supervisory experience, received a lower score than two

other candidates on the list and was characterized as confrontational by

a former supervisor. Considering the preponderance of the evidence, we

find that complainant has failed to provide sufficient justification for

the Commission to disturb the agency's employment decision. With respect

to SO's acknowledgment that the agency's AAP was a factor, the Commission

notes that under Johnson, the AAP may consider sex as one of several

factors to be taken into account in evaluating qualified applicants

for a position. Johnson, 480 U.S. at 641. Thus, the instant case is

legally consistent with Johnson insofar as sex was "a consideration"

in SO's ultimate selection decision.

In conclusion, the Commission finds that complainant failed to establish

that the agency's proffered reasons were pretextual or that the agency's

AAP was invalid. Accordingly, we affirm the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 19, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.