0120090052
02-11-2009
Slavko P. Knezevic, Jr., Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Slavko P. Knezevic, Jr.,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120090052
Agency No. 2007-21630-FAA-01
DECISION
Complainant filed an appeal from the agency's September 26, 2008 final
decision concerning his equal employment opportunity (EEO) complaint
alleging 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant
was an applicant for employment with the agency's Federal Aviation
Administration. Complainant applied for the position of Aviation Safety
Inspector (General Aviation Avionics) FG-1825-12. By letter dated
June 22, 2007, complainant was informed that he was being considered
by the agency for the position and complainant was asked to complete an
"Inquiry as to Availability Form." Complainant completed the form and
subsequently contacted the agency regarding the status of his application.
On August 18, 2007, complainant was informed by an agency official at
the Flight Standards District Office (FSDO) in Farmingdale, New York,
that he was not selected for an Aviation Safety Inspector position.
On October 16, 2007, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of national origin (Serbian),
religion (Greek Orthodox), and disability (unspecified) when he was not
hired for the position of Aviation Safety Inspector and was threatened
with arrest. Complainant's complaint was accepted for investigation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b).
In its decision, the agency found that complainant had applied for the
subject position and was determined to be qualified for the position.
Complainant was notified that he was being considered and the agency
received complainant's completed application and availability inquiry
form. Thereafter, however, the agency found that complainant's version
of the ensuing events differed from the accounts offered by agency
officials and witnesses. Specifically, complainant claims that he was
told by agency official E1, to appear at the agency's FSDO Farmingdale,
New York facility. When complainant arrived, another agency official, E2,
with whom complainant spoke had no information regarding complainant's
application. Agency witnesses reported that complainant appeared
confused and expressed to agency staff that he had already been hired as
the new Inspector. E2 instructed complainant to contact the agency's
Eastern Regional Office and ultimately, complainant spoke with H1, the
official who sent complainant the June 22, 2007 availability inquiry.
H1 explained to complainant that he had received only an inquiry and
was not yet hired by the agency. Complainant continued to contact the
agency to provide updated contact information for himself and to inquire
about the status of his application. According to E3, the facility
manager at the FSDO, complainant made numerous calls and left messages
in which complainant stated he had friends in Oklahoma, in Washington,
D.C., and in the Federal Bureau of Investigation. E3 consulted with H1,
regarding what E3 now considered a problem situation. H1 referred the
matter to agency security. A security agent contacted complainant and
advised complainant to refrain from contacting the agency any further.
E3 states that thereafter complainant made several additional threatening
calls. E3 stated that a hire was made from referral list FA-EA200-8-0165
and states that E2 handled the selection. E3 stated his belief that the
selectee is of Indian descent and Hindu. Complainant was not hired.
E3 denies that complainant ever spoke with him regarding his national
origin or his religion.
The agency found that complainant arguably established a prima
facie case of national origin and religious discrimination.
Specifically, complainant applied for the position of Aviation
Safety Inspector. Complainant was found qualified, but not selected.
The selectee was not in complainant's protected groups. The agency did
not find that complainant had established a prima facie of discrimination
on the basis of disability. While complainant asserts that he suffers
from tendonitis and an ulcer, the agency found that complainant did not
submit medical evidence to show that his conditions substantially impact
any major life activity.
However, the agency reasoned it articulated, legitimate non-discriminatory
reasons for not selecting complainant for the subject position.
Specifically, after complainant received the agency's letter of June 22,
2007, agency officials repeatedly explained to complainant that the letter
did not indicate that complainant was hired, but that the letter was only
an inquiry as to his availability and to notify him that he was being
considered. Despite explaining this to complainant, complainant continued
to contact the agency, asking for his reporting date. Complainant visited
the FSDO facility, and even introduced himself to employees as the new
inspector. After complainant was instructed not to contact the agency
any further, complainant persisted, leaving additional telephone messages
for E3. Ultimately, agency security informed complainant that if he
did not discontinue his calls to the agency, he would face legal action.
The agency found that no one on the list of eligible candidates on which
complainant's name appears was chosen, though the agency did not find
that complainant's actions ultimately removed him from consideration for
the position. Nevertheless, the agency found no evidence to show that
complainant's nation origin, religion or disability played any role in
the agency's selection. The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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 or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. 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 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community 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
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, we concur with the agency's final decision finding
no discrimination. Specifically, we will assume, for argument's sake,
that complainant established a prima facie case of national origin,
religion and disability discrimination.1 We find that complainant has
not shown that the agency's reasons for its actions were a pretext for
discrimination. We observe that multiple witnesses report encountering
complainant on the telephone and in person, during which contacts agency
officials explained the hiring process to complainant. H1, E2 and E3
all attempted to explain to complainant that his application had been
received and that his application was under consideration by the agency,
but that no offer of employment had been extended with the availability
notice of June 22, 2007. We further note that multiple witnesses
report that complainant called the agency excessively, more than was
needed to update his contact information. E3 and other agency witnesses
indicated that complainant's messages grew increasingly threatening,
which prompted E3 to complete a report for agency security. We find the
agency was within reason when security advised complainant to refrain
from contacting the agency further and notified him that if he appears
at the agency again legal action could be taken. Moreover, we find,
as did the agency, nothing in the record to indicate that complainant's
behavior led the agency to remove complainant's name from consideration.
Significantly, we find no evidence that complainant's national origin,
religion, or disability motivated the agency to fail to select him.
Complainant has not shown any evidence indicating that any agency official
involved in the selection process was aware of complainant's religion,
his disability or his national origin.2 Further, nothing in the record
shows that a selection was made from the list of candidates with whom
complainant applied.3 We concur with the agency that complainant has
not shown that discrimination occurred as alleged.
Based on a thorough review of the record, we AFFIRM the agency's final
decision, finding no discrimination.
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
February 11, 2009
__________________
Date
1 We assume, without so finding, that complainant was a qualified
individual with a disability.
2 The agency employees complainant contacted by telephone and during his
visit to FSDO Farmingdale, NY were aware that complainant spoke with an
accent.
3 The record shows that complainant's name (along with the name of the
selectee and other candidates) appears on Referral List #FA-EA200-7-1146,
with the notation, "on multiple open lists." E3 stated that the selectee
was chosen from Referral List #FA-EA200-8-0165, which list does not
appear in the record.
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0120090052
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090052