0120120789
04-23-2012
Taft D. Kelly, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Motor Carriers), Agency.
Taft D. Kelly,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Motor Carriers),
Agency.
Appeal No. 0120120789
Agency No. 2011-00042-FMCSA-021
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 16, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Title VI Program Manager, GS-0360-14, at the Agency's Office of Civil Rights, Federal Motor Carrier Safety Administration (FMCSA) in Washington, D.C.
On March 11, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (black), and in reprisal for prior protected activity when:
on January 5, 2011, he learned that he was not selected for the position of Supervisory Transportation Specialist advertised under Vacancy Announcement No. FMCSA-2011-0007.
After the investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on November 16, 2011, pursuant to 29 C.F.R. � 1614.110(b).
In its November 16, 2011 final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of reprisal discrimination. However, the Agency found that Complainant established a prima facie case of race and color discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext for discrimination. Specifically, the Agency found that the selectee possessed specific Hazardous Material safety experience, whereas Complainant did not.
The selecting official (SO) stated that he implemented a panel of three members, including himself, for the Supervisory Transportation Specialist position. SO stated that the panel interviewed three candidates, including Complainant, and at the conclusion of the interviews, ranked the candidates. The record reflects that six candidates applied for the subject position. The record further reflects that four candidates, including Complainant, were referred to the selection panel for interviews. One of the four candidates later withdrew from consideration.
SO stated that following the interviews, he chose the selectee for the subject position because he determined that the selectee was best qualified. Specifically, SO stated that the selectee "has over thirty years of experience in the highway safety profession, with the majority of them focused on commercial vehicle enforcement and administration. Since 1985, his expertise centered on Hazardous Material safety." SO stated that the selectee is a certified Hazardous Material Instructor and an Associate Hazardous Material Staff member at the Traffic Safety Institute.
SO further stated that in addition to teaching and developing training curriculum, the selectee has published articles relating to hazardous material issues. SO stated that that the selectee had served as Acting Division Chief for the Hazardous Material Division in which he "proved himself as a valuable leader, was respected by peers and subordinates, provided he could make decisions and skillfully coordinated enforcement efforts between field activity and headquarters priorities in the special permit program." SO stated that during the interview, the selectee "articulated his experience, provided Hazardous Materials training examples including powerpoints, articles, [and ] training certificates." SO stated that he felt that the selectee was the best candidate to carry out FMCSA's goals to implement policy that effectively reduces motor carrier crashes and increases compliance with the Hazardous Materials regulations.
SO stated that he did not select Complainant for the subject position because he did not articulate any expertise in the Hazardous Materials programs, and has limited technical knowledge of the Hazardous Materials Regulations. SO stated that Complainant has over twenty-three years of experience with the Office of Motors Carriers and FMCSA. Specifically, SO stated that Complainant worked as a Special Agent in the Florida field performing safety reviews and Hazardous Materials investigations, and later worked on a congressionally mandated program to reduce crashes and developed risk based programs. Complainant also worked as a Division Administrator before transferring to the FMCSA headquarters in which he managed the Hazardous Materials program within the District of Columbia (DC). SO stated that he found Complainant's knowledge of Hazardous Materials programs and regulations were very weak. SO determined that, as the Division Chief in Hazardous Material Division, Complainant would not be able to interpret, and did not display, an aptitude to interpret or apply the Hazardous Material Safety regulations to subordinates or leaders of the agency. SO found that Complainant did not promote himself as having any credibility with external and internal partners involved in Hazardous Materials transportation; that he did not adequately articulate his hazardous material experience; and that he did not provide an example of a Hazardous Materials presentation that was developed.
SO stated that during the relevant time he was not aware of Complainant's prior protected activity. Furthermore, SO stated that Complainant's race, color and prior protected activity were not factors in his determination to select selectee for the subject position.
One of the panelists (P1) stated that she and the other two panelists interviewed three candidates and following the interviews, she was asked "to mark on a piece of paper and submit to [SO], my first, second and third choice for the position among the three candidates." P1 stated that the selectee was her number one choice based on his extensive Hazardous Material regulation work experience. Specifically, P1 stated that the selectee had extensive knowledge and experience working with DOT hazardous material regulations and "had supervisory experience and carefully articulated his management style and leadership competencies."
P1 stated that Complainant was not her number one choice because he "did not have the same level of experience or depth of knowledge of the subject area as the selectee." Specifically,
P1 stated that Complainant had worked with enforcement of DOT hazardous materials regulations with the Federal Highway Administration (FHWA) in the Florida field office and worked with the District of Columbia . P1 stated, however, that she noted that Complainant's involvement with hazmat issues occurred over ten years previously, when he was with the FWHA office. P1 further stated that Complainant "stated that his expertise was based on his experience and the fact that he knows how to find the source of the necessary information. [Complainant's] background and experience did not come close to that matching of [selectee]."
The other panelist (P2) stated that the selectee was his number one choice because of his extensive hazardous material experience and "in addition, he possesses an executive background that dealt with a program development aspect for hazardous materials issues. [Complainant's] experience in the field of hazardous materials was less than [selectee]. [Complainant] did demonstrate an extensive knowledge of FMCSA; however, his experience of hazardous materials was less than [selectee]."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he established a prima facie case of race, color and reprisal discrimination. Complainant further argues that the Agency "never. . . articulated a business justification for not selecting Complainant. Although they submitted an affidavit from the Selecting Official, it was unsigned and cannot be seemed as admissible evidence."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. 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); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as addressed above. Complainant, on appeal, argues that because S1's affidavit was not signed, it cannot be deemed admissible evidence. After a careful review of the record, we note that SO signed and dated the subject affidavit on July 27, 2011 accompanied by another named Agency official's signature. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
April 23, 2012
__________________
Date
1 The record reflects that in its November 16, 2011 final decision cover letter, the Agency inadvertently identified its Agency Number as 2009-22607-FMCSA-02, instead of 2011-00042-FMCSA-02.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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