01970156
09-09-1999
Vello Hansen, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Vello Hansen, )
Appellant, )
) Appeal No. 01970156
v. ) Agency No. FAA-95-0573
) Hearing No. 110-96-8159X
Rodney E. Slater, )
Secretary, )
Department of Transportation )
(Federal Aviation Administration), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of age (DOB: 9/19/33), in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. Appellant alleges he was discriminated against
when he was not selected for a supervisory engineer position. The appeal
is accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED.
The record reveals that appellant, then a Supervisor, Environmental
Engineering Section (GM-14), at the agency's Airway's Facilities Division,
Southern Region, filed a formal EEO complaint with the agency on September
13, 1995, alleging that the agency had discriminated against him as
referenced above. At the conclusion of the investigation, appellant
requested a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ). Following a hearing, the AJ issued
a Recommended Decision (RD) finding no discrimination.
In his decision, the AJ made the following findings of fact: in response
to Vice-President Gore's National Performance Review initiative, the
agency issued a plan to implement goals which would reduce levels
of supervision, while simultaneously increasing the scope of that
supervision. On or about March 13, 1995, a memorandum was issued on
behalf of the Acting Division Manager concerning plans to implement a
realignment based on the National Performance Review. The plan, which
affected GS-14 supervisors in the Southern Region, required appellant
as well as other GS-14 supervisors, to indicate their preference for
the realigned positions, and submit resumes with completed KSA's to a
rating panel.
On or about March 30, 1995, appellant submitted his bid package requesting
to be placed as the supervisor of Sections 471, 451 or 472.<1> The
bid packages were evaluated and ranked by a panel (ages approximate:
39/40, 35, 40, 40, 50, 52, 40's). According to the panel's ratings,
appellant ranked third lowest out of all the candidates, with a score
of 17.3. The panel then created a list of recommendations based upon the
candidates' preferences and respective ratings. The panel recommended
that Section 451 be filled by Comparative 1 (aged 41), or appellant.
Although appellant had applied for Section 471, the panel did not mention
his name as having applied.
The Selecting Official for Sections 471 and 472 (SO1, aged 48), who
was also appellant's first line-supervisor, selected Comparative 1 for
Section 471 and Comparative 2 (aged 50) for Section 472. The Selecting
Official for Section 451 (SO2, aged 56) did not fill the position on the
first round of selections. Instead, the agency decided that it should
conduct a second round of selections which included not only supervisory
engineers, but all GS-14 engineers within those sections affected by
the realignment. Furthermore, the panel decided that it would not only
refer the top three candidates as the plan originally called for, but
would instead refer the top four or five candidates.
On May 5, 1995, appellant resubmitted his bid package and indicated
that his preferences for placement were Sections 458, 451 and 452.
The AJ noted that Section 458, the Program Management Section, is a GM
or GS-15 position, and was not among the available positions through the
realignment process. Furthermore, as appellant was a GS-14, he would
had to have been selected through a merit promotion in order to receive
a grade 15. Ultimately, the 458 supervisory position was never filled.
SO2 selected Comparative 3 (aged 48) for Section 451, despite his lacking
supervisory experience with the agency. SO2 also selected Comparative 4
(aged 37) for the 452 position. On May 28, 1995, appellant was reassigned
from his supervisory engineer position to a general engineer position,
with no loss in grade or pay. The instant complaint followed.
In his decision, the AJ found that appellant had established a prima facie
case of discrimination on the basis of his age in that those selected for
the positions he applied for were substantially younger than himself.
The AJ then concluded that the agency had articulated legitimate,
nondiscriminatory reasons for its actions through the testimony of the
selecting officials. Specifically, SO1 testified that Comparative 1 was
selected because he was better at delegating authority than appellant.
Furthermore, he testified that Comparative 1's participation in the
Mid-level Management program, as well as his ability to supervise
employees well made him the preferred candidate.
With respect to the other selectees, the AJ found that they were chosen
due to their electrical backgrounds, whereas appellant's background
was in civil engineering. Furthermore, both SO's testified they chose
the selectees based upon their management skills and ability to delegate
authority instead of micro-managing employees. Based upon his experience
working with appellant, SO2 testified that appellant lacked program
management skills, although he was technically sound.
The AJ found that appellant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. In reaching this conclusion, the AJ found
that appellant had failed to persuade him that age was a factor in the
selection decisions. Moreover, the AJ stated appellant failed to clear up
confusion which developed during the hearing. Specifically, appellant
requested placement into the Program Management Section, indicating
at one point it was Section 451 and another time, 458, even though
section 458 was not available through the realignment. Furthermore,
the AJ found that many of appellant's allegations concentrated upon
his belief that the agency had failed to comply with Order 3350.2C,
�Staffing Adjustments and Reduction in Force�. However, the AJ also
concluded that based upon his reading of the Order, the reassignment
involved in the instant complaint did not qualify as a Reduction in
Force in that no employees were displaced, that is, lost grades.
The AJ also found that although appellant alleged that the agency's
reorganization violated its own order concerning promotions, he failed to
prove that this was based on his age. Specifically, appellant failed to
develop the record as to any prior history of these selecting officials
preferring younger individuals, or any other evidence of age bias.
Rather, the AJ found that appellant had himself suggested that there
was animosity between himself and SO2 due to a personality conflict.
Although appellant had more years of supervisory experience than the
selectees, the AJ also found that appellant had failed to show that his
qualifications were substantially better than any of the selectees.
Instead, the AJ noted that appellant added to the confusion of the
hearing by producing a document which indicated that problems existed
following Hurricane Andrew which were actually the responsibility of his
own sections, rather than SO2's, as he had originally alleged. Finally,
the AJ noted that appellant failed to rebut the SOs' testimony that
appellant had problems supervising subordinate employees, and that he
lacked certain interpersonal skills necessary when supervising employees.
For instance, the Acting Division Manager testified that appellant
was often seen as a confrontational person, a quality the AJ found was
reflected in the record.
On September 9, 1996, the agency issued a final decision adopting the
AJ's RD. On appeal, appellant makes several contentions. Specifically,
he argues that the agency failed to provide requested discovery,
and alleged that SO2 perjured himself at the hearing. Furthermore,
appellant alleged that the AJ erred when he failed to find that the
agency's reasoning regarding program management was not pretextual,
and that the realignment process was procedurally flawed.
In response to appellant's arguments, the agency argues that appellant has
failed to show that he was denied discovery information, and even if he
was denied discovery, appellant has failed to show how this constitutes
harmful error. Furthermore, the agency argues that despite appellant's
arguments that the SO2 lied at the hearing, such vague statements are
not grounds for overturning the AJ's findings.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant failed to present
sufficient evidence that any of the agency's actions were motivated by
discriminatory animus with respect to appellant's age.
With respect to appellant's specific contentions regarding his discovery
requests, we agree with the agency's argument that appellant has failed to
articulate with any specificity what discovery he was denied, and why he
was prejudiced without such information. Furthermore, although appellant
argues that SO2 lied at the hearing regarding his responsibilities with
respect to the problems associated with Hurricane Andrew, we concur
with the AJ's findings that even if appellant had shown that SO2 was not
credible, the agency advanced other reasons why appellant was not chosen
for the positions. Specifically, testimony from the SO's revealed that
appellant lacked supervisory skills and had displayed poor accountability
in the past. They cited specific examples in support of their positions.
Alternatively, testimony from the SO's regarding the comparative's
management attitude, supported by examples, was much more positive.
The SO's testified that such qualities were necessary for supervisors
given the realignment.
As we find appellant has failed to rebut the agency's articulated reasons
for its actions, we find he has failed to prove, by a preponderance of
the evidence, that the these reasons were pretext for discrimination
on the basis of age. Therefore, after a careful review of the record,
including appellant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
September 9, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The AJ noted that
appellant erroneously indicated that Section
451, the Program Management Section, was his
second choice. However, as the AJ noted, the
record revealed that Section 451 was actually
the Communications Section, and Section 458 was
the Program Management Section.