01991790_r
12-04-2001
Scott K. Sellers, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Scott K. Sellers v. Department of Transportation
01991790
December 4, 2001
.
Scott K. Sellers,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01991790
DECISION
Complainant timely initiated an appeal from the agency's final decision
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. Complainant claims that he was discriminated against
in reprisal for prior EEO activity when, on June 5, 1997, complainant
was not selected for the position of Air Traffic Control Specialist,
FG-2152-12/13/14, Vacancy Announcement No. ACE-AT-97-0079-15262.
For the reasons described below, the Commission affirms the agency's
final decision.
The record reveals that complainant, an Air Traffic Control Specialist,
Grade 12, at the agency's St. Louis Downtown Air Traffic Control facility,
filed a formal EEO complaint with the agency on or about January 19, 1998.
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
requested that the agency issue a final decision. In its decision, the
agency concluded that complainant had not been discriminated against in
reprisal for prior EEO activity.
Regarding complainant's prior EEO activity, on or about November 19,
1996, complainant provided a statement to an EEO Counselor during an
informal investigation on behalf of an agency employee who claimed
that she had been the victim of sexual harassment. That employee,
who at the time was complainant's fianc�e and later became his spouse,
filed a formal complaint on or about January 25, 1997.
On or about April 9, 1997, complainant's bid for the position of
Air Traffic Control Specialist, specifically for a Grade 13 position,
pursuant to Vacancy Announcement No. ACE-AT-97-0079-15262, was received
by the agency. Under the Merit Promotion Program (MPP), 46 candidates
were deemed eligible for the available positions, with 18 of those
candidates being eligible for the
Grade 13 positions. No recommendations were made by the rating panel,
which forwarded the list of candidates to the Selecting Official
(SO). According to the SO, once the list of 46 eligible candidates
was received, the Operations Manager (OM) completed the screening and
recommendation process. The OM was tasked with recommending four names
for selection.
On June 5, 1997, four individuals were selected to fill the positions
under Vacancy Announcement No. ACE-AT-97-0079-15262. Two selectees filled
the Grade 13 positions, one selectee filled the Grade 12 position, and
one selectee filled the Grade 14 position. None of the four selectees
had engaged in prior EEO activity. Complainant was not selected for
the position.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), we agree with
the agency's conclusion in its final decision dated November 16, 1998,
that complainant established a prima facie case of discrimination on the
basis of reprisal. The agency concluded that although both the SO and the
OM claimed that they had no knowledge of complainant's prior participation
in the EEO process, the agency found that the evidence showed that the
SO �was aware or should have been aware of Complainant's prior activity.�
Complainant has established a prima facie case of discrimination;
therefore, the burden of production shifts to the agency to articulate
a legitimate, nondiscriminatory reason for not selecting complainant.
In its decision, the agency states that complainant's education and
experience were not as great as that of the individuals selected for the
positions to which he applied. According to the June 5, 1997 memorandum
in which the selectees were announced, one selectee to the Grade 13
position was selected due to her six years of Full Performance Level
experience as an Air Traffic Control Specialist at a Level III facility
and because she was a college graduate. The other selectee was chosen due
to his five years of Full Performance Level experience as an Air Traffic
Control Specialist at a Level II facility, including one and a half years
as a Level II Operational Supervisor. Additionally, this selectee was
a college graduate and an Instrument Flight Instructor. In a letter
dated July 13, 1998, the SO stated that complainant, in contrast to the
selectees, had three years and seven months of Full Performance Level
ATCS experience at a Level III facility, and less than one year Full
Performance Level ATCS experience at a Level II facility. Additionally,
complainant had only two years of college credit. Complainant makes no
new contentions on appeal.
The Commission finds that the agency met its burden of production by
articulating a legitimate, nondiscriminatory reason for not selecting
complainant to the position of Air Traffic Control Specialist under
Vacancy Announcement No. ACE-AT-97-0079-15262. Complainant has failed to
show that the agency's action was motivated by prohibited discrimination.
Therefore, we AFFIRM the agency's final decision finding no
discrimination.
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
December 4, 2001
__________________
Date