01a51133
12-21-2005
Toni L. Tyson, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Toni L. Tyson v. Department of Transportation
01A51133
December 21, 2005
.
Toni L. Tyson,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A51133
Agency Nos. 4-02-4122, 4-03-4003
Hearing Nos. 280-2003-04204X, 280-2003-04205X
DECISION
Complainant filed an appeal with this Commission from the October 4,
2004 agency decision implementing the September 29, 2004 decision of
the EEOC Administrative Judge (AJ) who found no discrimination.
In her consolidated complaints, complainant alleged that she was
discriminated against when:
(1) On February 19, 2002, she was informed that she was not
selected for the position of Air Traffic Control Specialist/Regional
Office Staff Specialist, Central Region under Vacancy Announcement
No. ACE-AT-02-0060-61593 because of her sex (female), and in reprisal
for prior EEO activity.
(2) Complainant was suspended without pay for five consecutive days,
effective May 27, 2002, because of her race (African-American), sex
(female), and in reprisal for prior EEO activity.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an AJ. Following a
hearing, the AJ issued a decision finding no discrimination. In her
decision, the AJ recounted in detail the testimonial and documentary
evidence of record.
Regarding complainant's nonselection, the AJ concluded that complainant
had established a prima facie case of sex discrimination, noting that
complainant was a member of the protected class of females, that she was
referred with other candidates as "best qualified" for the position, and
that she was not selected but two males were selected. The AJ further
concluded regarding the nonselection, that the agency had articulated
legitimate, nondiscriminatory reasons for its actions. The AJ noted
that 26 of the 29 applicants met the basic eligibility requirements for
the position and complainant's name, along with the names of the other
25 candidates were referred to the selecting official, the manager of
quality assurance. The AJ also noted that there were 25 male candidates
and five female candidates. The AJ found that the selecting official
selected the two selectees because their applications revealed that they
had the specific skills and experience consistent with the priorities
for which the selecting official was making the selection, specifically
reducing operational errors in the "en route" and "terminal options;"
and that the selectees were best qualified for the position, given their
knowledge, and experience in the en route and terminal options.
The AJ further concluded that complainant had failed to establish that the
agency's reasons for its selections were pretextual. Regarding pretext,
the AJ fully addressed complainant's arguments that she should have
been selected because of her educational degree and her en route and
terminal experience and because she received a higher overall score on her
application materials than did the selectees. The AJ also fully examined
complainant's additional arguments that the agency used criteria designed
specifically to exclude her, that the agency's concern about operational
errors was disingenuous, and that the agency reassigned another employee
(Employee A) to one of the disputed positions who did not have en route
or terminal experience after one selectee took another position about
a year following the selectee's selection.
The AJ noted that complainant did not dispute that the selectees had
significant en route and terminal experience, had supervisory and quality
assurance experience, and were fully certified in their respective
positions throughout their tenure with the agency. The AJ noted that
complainant failed to show that her educational background should have
taken precedence over the actual experience of the selectees which was
relied upon by the selecting official. The AJ also noted that it was
not disputed that complainant's Bachelor's degree could not outweigh
the actual experience and full air traffic control certification in
en route and terminal options. The AJ noted the selecting official's
testimony that he focused his decision regarding the selection on
decreasing operational errors in the en route and terminal options
where the position in question was located and that the applications of
the selectees demonstrated relevant and more substantial en route and
terminal experience than complainant.
Regarding her application score, the AJ noted the testimony of the
selecting official that although the application scores may have been
determinative of who made the best qualified list, the selecting official
focused his selection on demonstrated experience in en route and terminal
experience. The AJ noted that the selecting official specifically
excluded from consideration any candidate who did not have significant
en route or terminal experience. The AJ also noted that although the
agency did not include en route and terminal experience in the position
announcement, the agency had legitimate, nondiscriminatory reasons for
doing so. In this regard, the AJ noted that the selecting official
testified that he did not identify en route or terminal experience as
a criteria in order to obtain a larger pool of applicants from which to
make a selection. The AJ further noted that the selecting official had
been informed by the previous quality assurance manager that when the
former manager had posted a vacancy announcement listing en route and
terminal experience as criteria, there were only three or four candidates
referred as best qualified. The AJ concluded that the selecting official
was not limited by the position description in determining the relevant
qualifications of the applicants for the position, that the criteria used
by the selecting official were job-related, and that all the referred
candidates were evaluated by the same criteria.
Regarding the assignment of Employee A to the position vacated by one of
the selectees, the AJ noted the testimony of the selecting official that
Employee A had no en route or terminal experience and that the selecting
official would not have hired Employee A except that the upper management
directed the selecting official to accept the reassignment of Employee A.
Regarding the five-day suspension claim identified as claim 2, the AJ
concluded that complainant had not established a prima facie case of
race or sex discrimination because she failed to show that any other
supervisor outside of her protected group, who was excessively absent,
had a leave record similar to that of complainant, or was placed on
leave restriction, was not disciplined for failing to follow the leave
restriction. Regarding reprisal, the AJ noted that even if complainant
established a prima facie case of reprisal, complainant was issued the
five-day suspension due to her excessive absences and her refusal to
comply with leave request procedures set forth in the leave restriction
letter issued to her.
To establish a prima facie case of discrimination in a nonselection case
based on race or sex, a complainant must show: (1) she is a member
of the protected class; (2) she applied for and was qualified for the
position; (3) she was not selected despite his or her qualifications;
and (4) someone outside her protected class was selected. Williams
v. Department of Education, EEOC Request No. 05970561 (August 6, 1998).
To establish a prima facie claim of reprisal, complainant must show that:
(1) she engaged in a protected activity; (2) the agency was aware of
her protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse action. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000).
In a complaint which alleges disparate treatment and there is an absence
of direct evidence of discrimination, the allocations of burdens and
the order of presentation of proof is a three-step process. A claim
of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000).
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Assuming arguendo that complainant has established a prima facie
case on each basis and on each claim, we find that the agency has
articulated legitimate, nondiscriminatory reasons for its decisions and
the AJ so found. Moreover, where, as here, the agency has articulated
legitimate, nondiscriminatory reasons for its actions, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas
analysis to the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990). Regarding the
nonselection, the Commission also notes that in a nonselection case,
pretext may be demonstrated in a number of ways, including a showing
that complainant's qualifications are observably superior to those of
the selectee. See Williams v. Department of Education, EEOC Request
No. 05970561 (August 6, 1998). Here, complainant has not shown that
her qualifications for the position were so plainly superior to that
of selectees so as to warrant a finding of pretext. Moreover, we note
that an employer has the discretion to choose among equally qualified
candidates. The Commission finds that complainant has failed to show by a
preponderance of the evidence that the agency's actions were motivated by
discriminatory animus. We discern no basis to disturb the AJ's decision.
The agency's decision finding no discrimination is AFFIRMED.
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 21, 2005
__________________
Date