Marty E. Bakken,
Complainant,

v.

Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120093529
Hearing No. 570-2007-00887X
Agency No. 2005-19708-FAA-02

DECISION

Complainant timely filed an appeal from the Agency’s July 23, 2009,
final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq.  The Commission accepts the appeal pursuant to 29 C.F.R. §�
�1614.405(a). For the following reasons, the Commission For the following
reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's
final decision.

ISSUES PRESENTED

The issues presented are: (1) whether Complainant has established that
he was subjected discrimination based on age and reprisal when he was
not selected for Agency Air Traffic Control Specialist positions; (2)
whether Complainant has established that he was subjected to harassment
as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant
worked as an Air Traffic Control Specialist, FV-2152-H, at the
Agency’s Automated Flight Service Station (AFSS) in St. Petersburg,
Florida. Report of Investigation (ROI), at 2. In November 2004,
Complainant applied for an Air Traffic Control Specialist (ATCS) position
at the Agency’s Atlanta Air Route Traffic Control Center under Vacancy
Announcement No. ASO-05-A032, but was not selected. Id. Subsequently,
the Agency determined that a private contractor, Lockheed Martin, was
to assume control of the AFSS. Id. As a result, Complainant became a
displaced employee on February 22, 2005. Id. Thereafter, Complainant
submitted additional applications for ATCS positions under Vacancy
Announcement Nos. ACE-AAT-05-ATC6-77877, ACE-AAT-05-ATC7-77896, and
ACE-AAT-05-ATC8-77905 (National Bid Positions), which were advertised
specifically for displaced FV-2152 AFSS employees. Id. Selections were
made in May 2005, but Complainant was again not selected. Id.1

Complainant filed two formal complaints, on March 22 and June 22, 2005,
alleging that the Agency subjected him to discrimination based on age
(42) and in reprisal for prior protected EEO activity under the ADEA when:

1. he submitted a bid for an Air Traffic Control Specialist position at
the Atlanta Air Route Traffic Control Center, under Vacancy Announcement
Number ASO-05-A032-76107, and was not selected2;

2. he was not selected for Vacancy Announcement
Nos. ACE-AAT-05-ATC8-77905, ACE-AAT-05-ACT-77896, and
ACE-AAT-05-ATC6-77877 (National Bid Positions); and

3. he subjected to a hostile work environment when:

a. the Facilities Manager remarked that the people who Complainant had
been contacting in Washington had been instructed to hang up on him;

b.  the Facilities Manager remarked, “Yeah, I just got a call asking
what’s up with [Complainant] . . . . Can you put a lid on him?”; and

c. on June 2, 2005, when he was scheduled to have his job interview
with Lockheed Martin, the Facilities Manager told the Lockheed Martin
representative to call him if Complainant became hostile.3

At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
requested a hearing but the AJ assigned to the case dismissed the the
hearing request on the grounds that Complainant failed to comply with
the AJ’s orders. The AJ remanded the complaint to the Agency, and the
Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

Specifically, with respect to Complainant’s nonselection to the Atlanta
Control Center position, under Announcement Number ASO-05-A032-76107,
the Agency noted that Complainant failed to establish a prima face
case based on age. Final Agency Decision, at 12. The Agency noted
that, although Complainant was 42 and was eligible, with 17 years of
experience, he was not placed on the best-qualified list, nor did he
allege that he was older than the selectees. Id. The Agency also noted
that it articulated legitimate, nondiscriminatory reasons for its actions;
namely, that the first selectee had over 21 years of experience and the
second selectee had over 17 years of experience. Id. The Agency also
noted that the two named alternates for the position each had over 15
years of experience. Id. The Agency further found that Complainant failed
to establish pretext because, among other things, all of the selectees
were over the age of 40. Id. at 13

In regard to Complainant’s claim that he was not selected for Vacancy
Announcement Nos. ACE-AAT-05-ATC8-77905, ACE-AAT-05-ACT-77896, and
ACE-AAT-05-ATC6-77877 (National Bid Positions), the Agency noted that
although Complainant established a prima facie case of discrimination
based on age, he failed to do so with respect to reprisal. Id. at 13. The
Agency noted that there was no evidence that any one involved in the
above selections knew Complainant or was aware of his prior protected
activity. Id. The Agency also noted that it established legitimate,
nondiscriminatory reasons for its actions. Id. at 14. In particular,
the Agency noted that a special crediting plan was used to grade and
rank candidates in order to make selections for the positions. Id. The
Agency noted that this crediting plan evaluated candidates based on
job-related knowledge, skills, and abilities necessary to perform the
positions. Id. The Agency noted that each applicant received a numeric
score, and Complainant’s score was lower than 96 percent of all the
selectees. Id.

The Agency also found no evidence of pretext. Specifically, the Agency
noted that its crediting plan relating to the grading criteria for the
positions was confidential, and therefore it was not obligated to produce
it. Id. The Agency noted that the Commission has previously upheld the
withholding of crediting plans in the EEO complaint process on the basis
of confidentiality. Id. Lastly, the Agency found that it its conduct
toward Complainant was not sufficiently severe or pervasive to rise to
the level of a hostile work environment. Id. at 15.  The Agency also
noted that Complainant’s correspondence with persons in Washington,
which apparently led to the Facilties Manager’s comments, pertained
to accounting issues with the Agency’s College Training Initiative
Program.  The Agency further noted that although Complainant sought
this information in connection with his age discrimination complaint,
there was no reference by either Complainant or anyone he contacted in
Washington as to his EEO activity.

CONTENTIONS ON APPEAL

Complainant has not filed a brief on appeal. On appeal, the Agency
contends that several of the selectees for the Atlanta Control
Center position were over the age of 40. Agency’s Appeal Brief, at
2. Regarding the National Bid positions, the Agency contends that,
although Complainant established a prima facie case based on age,
he failed to do so with respect to reprisal. Id. at 3. The Agency also
contends that it articulated legitimate, nondiscriminatory reasons for its
actions; namely, that its selection process was properly administered. Id.

ANALYSIS AND FINDINGS

Standard of Review

As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a).  See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chapter 9, § VI.A. (Nov. 9, 1999) (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”).

Disparate Treatment

To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that he or she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Construction Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993).

Reprisal Discrimination

Complainant may establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination.  Shapiro v. Soc. Sec. Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)).  Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of
Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant
may establish a prima facie case of reprisal by showing that: (1)
he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment.  Whitmire v. Dep’t of
the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

Complainant did not allege reprisal discrimination with regard to
the Atlanta Air Route Traffic Control Center position, and he cannot
establish a prima facie case of reprisal with regard to the National
Bid positions.  The Agency has noted, without contest, that the selecting
officials for the positions in question did not know Complainant and were
unaware of his protected activity.  As there is no other evidence from
which to infer a prima facie case of reprisal discrimination as regards
these positions, Complainant cannot establish his claim.  With regard
to Complainant’s harassment claim, Complainant neither asserted,
nor is there any evidence, that the Facilities Manager was aware of
Complainant’s protected activity.  Accordingly, we find no basis to
infer a prima facie case of reprisal with regard to this claim.

Age Discrimination

Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. § 623(a)(1).  As a practical matter, Complainant may establish
a prima facie case of age discrimination by showing that he applied and
was qualified for a position, and was not selected in favor of someone
substantially younger than he.  O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312-13 (1996); McDonnell Douglas, 411 U.S. at 802.

Nonselection for Vacancy No. ASO-05-A032

With respect to the Atlanta Air Route Traffic Control Center position, we
find that Complainant has failed to establish a prima facie case of age
discrimination. While Complainant established that he was over 40 years
of age and not selected, he failed to establish that a significantly
younger person was selected instead. Although the record is does not
specify the ages of the selectees, the Agency noted that all were above
the age of 40.  Further, there is no dispute that the first selectee had
over 21 years of experience and the second selectee had over 17 years of
experience, which was equal to or greater than Complainant’s 17 years
of experience. ROI, Ex. F6a.  Accordingly, the evidence is insufficient
to raise an inference of discrimination based on age.




Nonselection for National Bid Positions

Complainant has established a prima facie case of age discrimination
with regard to these positions, in that he applied and was qualified
for the positions, and was not selected in favor of selectees who were
outside of his protected age group.4

The burden of production now shifts to the Agency to articulate a
legitimate, non-discriminatory explanation for not selecting Complainant.
Burdine, 450 U.S. at 253.

The Agency offers as its non-discriminatory explanation that the
selection process was properly administered.  The Agency noted in
its final decision that a special crediting plan was used to grade
and rank candidates, but did not produce the plan, contending it was
confidential. Further, the Agency noted that Complainant received a
lower rated score than most of the selectees, but did not provide any
information about the bases, factors, or assessments motivating its
decision. Such a non-descriptive and vague explanation does not satisfy
the Agency's burden to produce a legitimate, nondiscriminatory reason
for its actions. While the agency's burden of production is not onerous,
it must nevertheless provide a specific, clear, and individualized
explanation for the treatment accorded the affected employee. See
Wilson v. Soc. Sec. Admin., EEOC Appeal No. 01A50140 (Mar. 10, 2006)
(finding age discrimination based on the agency’s failure to carry its
burden and provide information about the bases, factors, or assessments
motivating its decision to not select complainant); Eubanks v. Dep’t
of Housing and Urban Development, EEOC Request No. 01A40070 (Sep. 14,
2005) (finding age and sex discrimination based on the agency's reliance
on a summary of the mechanics of its selection process and subsequent
failure to meet its burden to produce an “individualized explanation”
for why it did not select the complainant for the relevant position);
Lorenzo v. Dep’t of Defense, EEOC Request No. 05950931 (Nov. 6, 1997)
(finding race discrimination based the agency's failure to carry its
burden and “adequately explain” why complainant was not selected
for the position). Therefore, we find that the Agency failed to carry
its burden to articulate a legitimate, non-discriminatory reason for
its action.

We note that although we have upheld the confidentiality of crediting
plans, we have only done so when the record adequately provided enough
information to sufficiently determine the Agency’s legitimate,
non-discriminatory explanation for the non-selection. See Fausto
v. Dep’t of the Interior, EEOC Appeal No. 01941292 (Oct. 28, 1994)
(upholding the confidentiality of the agency’s crediting plan because
the record provided enough information without the plan in order to make
a determination on complainant’s claim), req. for recon. den’d, EEOC
request No. 05950181 (May 9, 1996). Therefore, we find that Complainant
has established that he was discriminated against based on age when he was
not selected to the National Bid Air Traffic Control Specialist positions.

Harassment

With respect to Complainant’s claim that he was subjected to a hostile
work environment, we find that under the standards set forth in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of
hostile work environment must fail. We find that assuming, arguendo,
that all of the incidents occurred as Complainant stated, he nonetheless
has failed to show that the incidents were severe or pervasive enough
to establish a hostile work environment. See Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision with respect to claims 1 and 3; we REVERSE the
Agency’s final decision with respect to claim 2, and REMAND the case
to the Agency for further action consistent with this decision and the
Order of the Commission, below.

ORDER

Within sixty (60) calendar days of this decision becoming final, the
Agency is ORDERED to take the following remedial actions5:

1. The Agency shall offer Complainant retroactive placement n the
position of Air Traffic Control Specialist as announced in Vacancy
Announcement Nos. ACE-AAT-05-ATC6-77877, ACE-AAT-05-ATC7-77896, and
ACE-AAT-05-ATC8-77905, or a substantially equivalent position within
the same commuting area(s).  Complainant shall be allowed fifteen (15)
calendar days to accept or decline the position.  Should Complainant
decline the offer, the date of declination shall serve as the end date
for purposes of calculating back pay and benefits.

2. The Agency shall determine the appropriate amount of back pay, with
interest, and other benefits due Complainant, pursuant to 29 C.F.R,
§ 1614.501. The back pay shall include salary increases based on
satisfactory work performance. The Complainant shall cooperate in the
Agency's efforts to compute the amount of back pay and benefits due, and
shall provide all relevant information requested by the Agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the Agency shall issue a check to the Complainant for the undisputed
amount within sixty (60) calendar days of the date the Agency determines
the amount it believes to be due. The Complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled “Implementation
of the Commission's Decision;”

3. Provide four hours of training to the responsible management officials,
with special emphasis on the ADEA.

4. The Agency shall consider taking appropriate disciplinary action
against the responsible Agency officials still employed by the Agency. If
the Agency decides to take disciplinary action, it shall identify the
action taken. If the Agency decides not to take disciplinary action,
it shall set forth the reasons(s) for its decision not to impose
discipline. If any of the responsible Agency officials have left the
Agency's employment, the Agency shall furnish documentation of their
departure date(s). The Commission does not consider training to be a
disciplinary action.

The Agency is further directed to submit a report of compliance, as
provided in the statement entitled “Implementation of the Commission's
Decision,” The report shall include documentation indicating that the
corrective action has been implemented.

POSTING ORDER (G0610)
The Agency is ordered to post at its Automated Flight Service Station
(AFSS) in St. Petersburg, Florida, copies of the attached notice. Copies
of the notice, after being signed by the Agency's duly authorized
representative, shall be posted by the Agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted for
sixty (60) consecutive days, in conspicuous places, including all places
where notices to employees are customarily posted. The Agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled “Implementation of the Commission's Decision,” within ten
(10) calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

Compliance with the Commission's corrective action is mandatory. The
Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant. If
the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §
1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If
the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See
29 C.F.R. § 1614.409.

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 (Nov. 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 (T0610)

This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint.  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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the
Agency, or your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint.  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


August 9, 2011
Date


1 On October 1, 2005, Complainant’s employment ended with the Agency
due to a Reduction in Force (RIF).
2 Complainant did not allege reprisal with respect to this claim.
3 In a letter dated February 15, 2006, the Agency consolidated the two
complaints. The Agency also informed Complainant that his consolidated
complaint came within the definition of a class complaint currently
pending in U.S. District Court. Thereafter, on March 10, 2006, the agency
issued a final decision dismissing Complainant's individual consolidated
EEO complaint on the grounds that it is the basis of a pending civil
action in a U.S. District Court. In Marty E. Bakken v. Dep’t of
Transportation, EEOC Appeal No. 0120062948 (Jan. 16, 2007), we reversed
the Agency’s March 10, 2006, decision, finding that the Agency failed
to establish that the claims in Complainant’s complaint pending before
the U.S. District Court were identical to the claims raised herein.

4 While the exact ages of the selectees were not included in the record,
the record does reflect that at least 31 of the multiple selectees were
under the age of 40 at the time of selection.
5 We note that under the ADEA, Complainant, although a prevailing party,
is entitled to neither attorney’s fees nor compensatory damages,
as the ADEA makes no provision for these remedies.
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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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