Donald Bodine v. Department of Transportation
01984364
08-16-01
.




Donald Bodine,
Complainant,

v.

Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.

Appeal No. 01984364

Agency No. DOT1-95-0516R

DECISION

Donald Bodine (complainant) filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from a final agency decision
(FAD) received April 18, 1998, concerning his complaint alleging that he
was discriminated against on the basis of his race (Black), in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq. (1994 & Supp. IV 1999).  The appeal was
postmarked May 12, 1998.  Accordingly, the appeal is accepted pursuant
to 29 C.F.R. § 1614.405.

ISSUE PRESENTED

The issue presented on appeal is whether complainant was discriminated
against because of his race when the agency failed to rehire him in
May 1995.

BACKGROUND

In August 1993, President Clinton lifted the ban on employment with
the Federal Aviation Administration for those Air Traffic Controllers
who participated in the 1981 strike against the government.  The Agency
issued Recruitment Notice 93-10.  Complainant applied for an Air Traffic
Controller position under the Notice and, on October 18, 1998, the agency
established complainant's eligibility for both center and tower options.
In May 1995, the agency rehired several former Air Traffic Controllers.
Complainant was not rehired.  In May 1995, complainant contacted an
Equal Employment Opportunity (EEO) counselor and alleged that the agency
discriminated against him on the basis of his race when (1) it failed to
return him to duty within one year after his recovery from an on-the-job
injury sustained in July 1981; and (2) it did not rehire him in May
1995, while it rehired several other former Air Traffic Controllers.
He filed a formal complaint on August 3, 1995.

In a final decision dated January 29, 1996, the agency dismissed
allegation 1 and 2 of complainant's complaint for untimely EEO counselor
contact and for failure to state a claim respectively.  In reaching
this decision the agency determined that allegation 2 was not within the
purview of EEO regulations because it alleged that the agency failed to
restore complainant to his position in violation of the Federal Employees'
Compensation Act (FECA).

In Appeal No. 01962832, complainant provided evidence that the agency
required him to submit a race and national origin identification form (SF
181) as part of his application for rehire consideration.  After reviewing
the contentions raised on appeal, the Commission affirmed the agency
decision dismissing allegation 1 as untimely filed as complainant did not
contact an EEO Counselor within 45 days of the alleged discrimination as
required by 29 § C.F.R. 1614.105(a)(1). The Commission also found that
complainant did not describe a race discrimination claim in allegation
2 and therefore affirmed the agency decision that complainant failed to
state a claim.

On November 6, 1996, complainant initiated a timely request to
the Commission to reconsider the above decision.   In EEOC Request
No. 05970168, the Commission granted complainant's request and issued a
decision that affirmed the previous decision's finding that the agency
properly dismissed allegation 1 for failure to timely contact an EEO
counselor, but reversed the previous finding that complainant failed
to state a claim of discrimination based on race.   Specifically, the
Commission found that a fair reading of allegation 2 of complainant's
complaint indicated that he was alleging discrimination on the bases of
his race and color (black) when he was not rehired by the agency in May
1995, when the agency rehired several former Air Traffic Controllers. The
Commission also found that although complainant aggressively made the
argument that the agency's actions were in violation of the FECA, such a
claim did not preclude his race and color discrimination claim.  Further,
it was improper for the agency to consider complainant's ability to prove
his claim when it dismissed allegation 2.  As long as complainant alleged
that he was not rehired because of his race and color, he states a claim
under Title VII.  The agency was ordered to process the remanded claim.

The agency completed a supplemental investigation on the remanded claim
in March 1998.  In April 1998, the agency issued a FAD finding that
while complainant had established a prima facie case of discrimination
based on race, it had a legitimate non-discriminatory basis for its
decision not to hire him, that being, complainant was not rated as
high as were other applicants who were referred for the positions.
Specifically, the complainant ranked lower than other applicants in
areas such as recent experience, and current government employment.
In response, complainant argued on appeal that discrimination is
indicated where the agency had a past discriminatory hiring policy,
in that he has twenty-three years of experience with the agency and has
personal knowledge that in the past blacks had a 60% failure rate at the
initial training phase at the Aeronautical Training Center; and further
that the agency requested that he identify his race on a form included
in his application package.<1>  The agency found that complainant
had not met his burden of establishing that the agency's articulated
reasons were a mere pretext for discrimination.  Further, it found that
complainant had not shown any specific instances where he had knowledge
of past discriminatory hiring policies or how any alleged discriminatory
policies related to his non-selection.  This appeal followed.

FINDINGS AND ANALYSIS

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).  See also Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979).
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.
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.  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.  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.  United States
Postal Serv. Bd. 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 Serv.,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).

The agency found that complainant had established a prima facie case of
discrimination based on race in his non-selection for reappointment.
Specifically, it found that he was found to be at least minimally
qualified and persons outside his protected category were selected.
The agency then articulated a legitimate, nondiscriminatory reason for
the non-selection, that being, complainant was ranked lower than other
applicants because he had no recent experience in the field nor was he
a current government employee.

In response, complainant argued that his knowledge of the agency's
past discriminatory hiring policies, and the agency request for him to
identify his race during the application process, support a finding
of discrimination.  The agency correctly argued that complainant did
not show that its proffered explanation was unworthy of credence,
in that complainant provided no instances where he had knowledge of
past discriminatory hiring policies nor did he provide any facts that
pertained to his non-selection.  On appeal complainant argued that
blacks had a 60% failure rate in the initial training phase.  However,
complainant provided no evidence nor did he indicate that the failure
rates of blacks was appreciably higher than that of whites when he was
in the training phase.  Moreover, complainant provided no evidence to
show that this was still a current problem or that any such criteria
played a role in the instant non-selection.

Complainant also alleged that the request to self-identify his race
was discriminatory.  Complainant has not shown that the agency failed
to refer him for employment or that his racial identity was used for
a discriminatory purpose.   A review of complainant's application form
(SF-171) indicated that he entered no information regarding his current
or prior employment other than the title of his previous position (GS-14
Air Traffic Control Specialist) and his statement to “see pages 5-10 of
this recruitment notice.” Complainant provided no explanation for the
12 year gap in employment, nor did he establish that he had subsequent
government service or that his skills in the field remained current.
Therefore, the Commission finds that complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination.

CONCLUSION

After a careful review of the record, including complainant'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 (M0900)

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

____08-16-01______________
Date





1The record indicates that due to a keypunch error complainant was
misidentified on the list of applicants as white instead of black.

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