The Office of Federal Operations (OFO), EEOC, reversed its administrative
judge (AJ) on appeal and held that she had improperly granted summary
judgment to the agency in Price v. Dep’t of Transportation (Federal Aviation
Administration), Appeal No. 0120070693 (8/29/08). The case arose as a result
of the FAA Chief Counsel’s determination to promote attorneys within the
agency. Regional, Center and Assistant Chief Counsels were invited to submit
one attorney for promotion. In October 2004, the Chief Counsel announced
the promotion of 13 attorneys to the Senior Attorney position. The Southwest
Regional Counsel recommended two attorneys, including the complainant,
but neither was promoted.
However, the complainant did not learn that "a final selection determination
was made" until January 10, 2005, when the Chief Counsel "rejected the
supervisor’s request for the complainant’s selection." The EEOC disagreed
with the AJ, finding that the complainant’s February 16, 2005, EEO contact
was timely "[b]ecause of the informality of the selection process and the
appearance in October 2004, that a conclusive determination was still pending."
Thus, the OFO found that the October date was not "determinative of when
complainant should have reasonably suspected discrimination" because "the
selection decision was not final."
The OFO determined that the AJ improperly analyzed the comparators by
focusing on the colleague who was also not promoted. The "AJ erred because
in a non-selection claim, the focus should be on the selectees to the position
and whether their treatment vis a vis complainant raises an inference of
discrimination." The OFO found that the record "is wholly inadequate as to
what exactly were the protected bases of the selectees." The OFO went on to
find that there are "material facts in dispute making a decision without a
hearing inappropriate" because the selecting officials disagreed on the reasons
for the complainant’s non-selection. "The decision-makers conflicting reasons
for their decision puts in dispute material facts."
The Commission also noted that "one of the AJ’s findings of fact is unsupported
by the record" and stressed that "the AJ must evaluate the witness testimonies
to ascertain the truth behind why complainant was not selected for the promotion."
Therefore, the OFO reversed dismissal of the claim on the ground of untimely EEO
contact, vacated the order finding no discrimination, and remanded the claim to
the AJ "to conduct a hearing and make credibility judgments before finding in any
party’s favor." The complainant is represented by Edward H. Passman, a founding
principal at Passman & Kaplan, P.C.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law
firm dedicated to the representation of federal employees worldwide. For more
information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com .
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