EEOC Appeal 2020000013

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Valentine P.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 2020000013
Hearing No. 450-2017-00046X
Agency No. 2016-26729-FAA-05
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 7, 2019, final order
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 an Airways Transportation Specialist. On May
5, 2016, Complainant filed a formal EEO 	complaint alleging that he was subjected to
discrimination on the bases of race (Native American), national origin (Hispanic), sex (male), and
in reprisal for prior protected EEO activity (prior EEO case of his own and served as a
representative for a co-worker’s EEO case).
By letter dated May 26, 2016, the Agency accepted the formal complaint for investigation and
determined that it was comprised of the following claim:
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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On December 30, 2015, [he] learned that [he] had not been selected for any of the
three temporary management positions that had been posted as vacancies on the
Solicitation of Interest (SOI) that opened on November 25, 2015 and closed on
December 5, 2015.
After an investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of the right to request a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). 	Complainant timely requested a hearing. 	Over Complainant's
objections, the AJ assigned to the case granted the Agency’s June 23, 2017, motion for a decision
without a hearing and issued a decision without a hearing on June 12, 2019.
The AJ found that Complainant’s prima facie case failed regarding the reprisal basis. Specifically,
the AJ found that Complainant’s EEO activity was too remote to be linked to the action at issue.
In addition, the AJ found that the selecting official was not aware of any protected activity by
Complainant.
The AJ found, however, that even assuming Complainant was able to establish a prima facie case
of discrimination, the Agency articulated a legitimate, nondiscriminatory reason for its actions.
The AJ noted that the Agency posted these positions through SOI, a non-competitive process. The
AJ stated that the selecting official (SO) for the positions at issue only began to work at the Dallas
TRACON in the month before the selections. 	The AJ found that the SO used the SOI as an
employee development tool aimed at giving “large TRACON” management experience to
individuals without that type of experience. The AJ noted that Complainant had previously held
temporary management experience at the Dallas TRACON, while the selectees had not. The AJ
further found that Complainant failed to establish that the Agency’s articulated reason was pretext
for discrimination.
On August 7, 2019, the Agency issued a final action implementing the AJ’s finding of no
discrimination.
The instant appeal followed. On appeal, Complainant asserts that the AJ’s decision is improper
and that he has been subjected to disparate treatment and disparate impact discrimination.
Complainant asserts that the three female selectees were less qualified than him. 	Complainant
states that the “4/5 rule was not adhered to, nor did the agency even bother to consider or try to
split the managerial positions between males and females.” 	Complainant also asserts that the
Agency did not follow OPM regulations regarding these selections. 	Specifically, Complainant
states that under OPM regulations details in excess of 120 days must follow the competitive
process. Finally, Complainant argues that he established a prima face case of retaliation.
In response, the Agency requests that we affirm its final action implementing the AJ’s decision.
The Agency asserts that under a disparate impact analysis, Complainant makes baseless assertions
without presenting significant statistical data.

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The AJ further asserts that even assuming Complainant established a prima facie case of
retaliation, the Agency articulated legitimate, nondiscriminatory reasons for its actions which
Complainant failed to establish was pretext for discrimination and/or retaliation.
The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. 	See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions 	and 	legal 	analysis 	– 	including 	on 	the 	ultimate 	fact 	of 	whether 	intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (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”).
The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to
determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at
249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and
must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of
fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A
“material” fact has the potential to affect the outcome of a case.
As an initial matter, we find that the AJ properly issued a decision without a hearing because there
is no genuine issue of material fact in dispute.

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Disparate Treatment Analysis
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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). 	The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. 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 Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No.
05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No.
05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May
31, 1990).
Even assuming arguendo that Complainant establish a prima facie case of discrimination and/or
retaliation, we find that the Agency articulated legitimate, nondiscriminatory reasons for its
actions. The record contains an affidavit from the selecting official (SO). SO asserts that he started
working at TRACON in November 2015, and was new to the management team during the period
at issue. SO asserts that the process for the selections was a solicitation of interest (SOI) which is
a non-competitive process. Therefore, ratings, rankings, and interviews are not required.2 Report
of Investigation at 78. SO stated that he had conversations with the management team regarding
the selections because he was new and he did not know most of the candidates. 	Regarding the
selections at issue, SO stated he was “trying to develop some employees and give opportunities to
people who hadn’t had it before” and we “were looking to provide learning opportunities to
employees who did not have management experience at a large TRACON…” Id.
The record reflects that the three selectees for the temporary positions at issue comprised two
Caucasian females and one African American female.
2 The record contains a copy of the SOI posting. 	The posting provides, in pertinent part, that it
was a temporary position not to exceed 180 days. ROI at 105. The SOI further set forth that it is
not a competitive process. Id.

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ROI at 66. 	SO stated, in his affidavit, that two of the selectees did not have management
experience and one had an acting manager position at “DAL SSC and we wanted to see how she
would do at a large TRACON.” ROI 79. 	SO stated that Complainant had prior temporary
management positions at a large TRACON. ROI a 79. Complainant acknowledged that he held
prior temporary management positions at the Dallas TRACON. ROI at 66, 119-121.
Complainant failed to establish that the Agency’s articulated reason was pretext for discrimination
and/or retaliation. Complainant asserts that the Agency should have selected him because he had
more management experience. However, the Agency indicated that it wanted to provide learning
opportunities to employees who did not have prior management experience at a large TRACON.
The Agency’s articulated reason of wanting to develop more inexperienced staff falls within the
Agency’s business discretion. Finally, regarding Complainant’s assertion that pursuant to OPM
regulations, the positions at issue should have followed the competitive process because these
temporary positions were over 120 days (not to exceed 180 days), we find that even assuming
arguendo, without finding, that the Agency did not properly follow OPM regulations in this
manner, Complainant failed to establish that any alleged variance was due to his protected classes.
Disparate Impact Analysis
To establish a prima facie case of disparate impact, the complainant must show that an agency
practice or policy, while neutral on its face, disproportionately impacted members of the protected
class. This is demonstrated through the presentation of statistical evidence that establishes a
statistical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank
& Trust, 487 U.S. 977, 994 (1988) (the complainant must present “statistical evidence of a kind
and degree sufficient to show that the practice in question has caused the exclusion”). Specifically,
complainant must: (1) identify the specific practice or practices challenged; (2) show statistical
disparities; and (3) show that the disparity is linked to the challenged practice or policy. Id. The
burden is on the complainant to show that “the facially neutral standard in question affects those
individuals [within the protected group] in a significantly discriminatory pattern. Dothard v.
Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines v. Department of the Navy, EEOC Petition
No. 03990119 (August 31, 2000). A “bottom line” disparity is not sufficient.
In the instant matter, we do not find that Complainant met his burden in establishing disparate
impact discrimination. Complainant argues that the Agency’s SOI process in selecting employees
for temporary management positions has a disparate impact on males. 	Complainant did not meet
his burden in establishing that the SOI process has a disparate impact on males. 	Complainant
relies on the three vacancies at issue herein in an effort to establish a disparate impact. Moreover,
according to Complainant, women fill 67% of the management positions at Dallas TRACON.
However, Complainant failed to provide any statistics on the application of the SOI process in a
broader context (i.e. other vacancies). In addition, Complainant, in his deposition, taken during
the discovery process, asserts that he received his prior temporary management positions at
TRACON Dallas through the SOI process. 	Complainant’s Deposition (April 25, 2017) at 21.
Complainant has failed to demonstrate that a statistical disparity existed which is linked to the
challenged agency practice (SOI process).

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Accordingly, we affirm the Agency’s final action implementing the AJ’s decision without a
hearing finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within which to submit a brief or
statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required. Failure to file within the 30-day time period will result in dismissal of the party’s
request for reconsideration as untimely, unless extenuating circumstances prevented the timely
filing of the request. Any supporting documentation must be submitted together with the 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).

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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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:
______________________________ 	Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
October 26, 2020
Date