01973302
11-25-1998
Anthony G. Hope, Appellant, v. William J. Cohen, Secretary, Department of Defense, (Defense Logistics Agency, Agency.
Anthony G. Hope v. Department of Defense
01973302
November 25, 1998
Anthony G. Hope, )
Appellant, ) Appeal No. 01973302
v. ) Agency No. TA-95-016
William J. Cohen, ) Hearing No. 170-96-8056X
Secretary, )
Department of Defense, )
(Defense Logistics Agency, )
Agency. )
DECISION
Appellant timely initiated an appeal to this Commission from a final
agency decision ("FAD") concerning his complaint of discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. Section 621 et seq. The appeal is accepted pursuant
to the provisions of EEOC Order No. 960.001.
The issue presented is whether appellant proved, by a preponderance of
the evidence, that he was discriminated against based on his age (48)
when he was not selected for the position of Supervisory Commodity
Logistics Specialist, GS-13 (the "Position").
Appellant, a Contract Specialist, GS-12, applied for the Position and
was not selected; the selectee was age 39. Appellant timely sought EEO
counseling, and his instant complaint was accepted and investigated by
the agency. Thereafter, appellant requested a hearing and his complaint
was scheduled to be heard by an EEOC Supervisory Administrative Judge
("AJ"). However, neither appellant nor his counsel appeared at the
scheduled prehearing conference. Appellant's counsel apologized to the
AJ for his failure to appear, citing his status as a sole practitioner,
his newly hired secretary and simple inadvertence and excusable neglect.
The AJ nonetheless remanded the matter back to the agency for issuance of
a FAD without a hearing, for failure to cooperate with an order of an AJ.
See 29 C.F.R. �1614.109(d).
In its FAD, the agency found that appellant had failed to establish
discrimination. Appellant initially was rated not eligible for the
position. However, after complaints from appellant and other candidates,
the Personnel Staffing Specialist determined that the candidates should be
evaluated on whether they had one year of experience at the GS-12 level
in any one of the specialities encompassed in the multiple functions of
the Position.
Both appellant and the selectee had nine years experience at the GS-12
level, and both had received temporary promotions to the GS-13 level.
Appellant's years of experience were spent in the GS-1102 (contracting)
series; the selectee's experience was in three series, GS-246 (logistics
management), GS-2003 (supply) and GS-301 (general management). Appellant
contended that experience in acquisitions was more relevant and that
he had more education and training than the selectee. However, agency
officials noted that the multiple functions of the Position permitted
qualifying experience in any of the listed areas. In addition, the
selectee was the first choice of all the members of the interview
panel, although a second candidate (not appellant) had been strongly
considered.
On appeal, appellant's counsel primarily argues that this matter should
be remanded for the purposes of a hearing before an AJ. Counsel contends
that the failure to appear was not due to disrespect or willful disregard
of the administrative process, and that a hearing would bring into
issue the credibility of the agency official's articulated reasons for
their actions.
However, the Commission is not persuaded that the AJ abused her discretion
in remanding this matter for the issuance of a FAD without a hearing
based on the failure of both appellant and his counsel to appear at
a scheduled prehearing conference. Accordingly, we will address the
merits of this matter.
As this case alleges employment discrimination based on age, it is
the burden of the complainant initially to establish that there is
some substance to his or her allegation. In order to accomplish this,
the complainant must establish a prima facie case of discrimination.
McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). This means
that the appellant must present a body of evidence such that, were it not
rebutted, the trier of fact could conclude that unlawful discrimination
did occur. The burden then shifts to the agency to articulate a
legitimate, non-discriminatory explanation for its action. Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard,
the agency need only produce evidence sufficient "to allow the trier of
fact rationally to conclude" that the agency's action was not based on
unlawful discrimination. Id. at 257. Once the agency has articulated
such a reason, the question becomes whether the proffered explanation
was the true reason for the agency's action, or mere pretext. The
burden then shifts back to appellant to show, by a preponderance of the
evidence, that the agency was more likely motivated by discrimination,
or that the agency's proffered explanation is unworthy of credence.
Burdine, 450 U.S. at 256. While the burden of production may shift,
the ultimate burden of persuasion remains on appellant at all times. See
Board of Trustees of Keene College v. Sweeney, 439 U.S. 24, 25 n. 2 1978).
This analysis, developed in the context of Title VII proceedings, also
applies to cases arising under the ADEA. Jackson v. Sears, Roebuck &
Co., 648 F.2d 225 (5th Cir. 1981).
Applying the analytical framework set forth above, the Commission finds
that appellant established a prima facie case of age discrimination,
but failed to establish that the agency's articulated reasons for his
nonselection were a pretext to mask discrimination. While appellant
points to his extensive experience in acquisitions, the record establishes
that the agency intended the Position to encompass a multitude of
functions in various series. In addition, the selectee had more
supervisory experience, more favorable performance evaluations and more
varied training than appellant.
Accordingly, after a careful review of the entire record, including
arguments and evidence not specifically addressed in this decision,
it is the decision of the Commission to AFFIRM the FAD in this matter.
STATEMENT OF RIGHTS-ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Nov 25, 1998
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations