01970655
05-13-1999
Bernard J. Kruse III, Appellant, v. Bruce Babbitt, Secretary, Department of Interior, Agency.
Bernard J. Kruse III, )
Appellant, )
) Appeal No. 01970655
v. ) Agency No. LMS96001
)
Bruce Babbitt, )
Secretary, )
Department of Interior, )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the basis of age (43), in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Appellant alleges he was discriminated against when he was
not interviewed or selected for the position of Supervisory Petroleum
Engineer, GS-0881-14, advertised as Vacancy Announcement S-95-17.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the reasons that follow, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was
employed as a Staff Petroleum Engineer, GS-0881-13, at the agency's
Minerals Management Service (MMS), Gulf of Mexico OCS Region, Jefferson,
Louisiana. Appellant filed a complaint on August 30, 1995, alleging that
the agency discriminated against him as described above. Following an
investigation, appellant did not request an EEO administrative hearing,
and the agency issued a FAD dated September 30, 1996, finding no
discrimination. It is from this decision that appellant now appeals.
The record reveals that appellant was one of seven applicants ranked
as qualified and placed on a Merit Promotion Certificate (MPC) for the
position of Supervisory Petroleum Engineer (the Position). This list
was submitted to the two selecting officials, the Regional Supervisor
(SO1), and the Deputy Regional Supervisor (SO2), who in turn used a
specially developed �matrix� to evaluate the applicants according to
numerous factors. They selected three applicants to interview using
this process, but appellant was not among them. Two of the interviewed
applicants were older than 40, and one, aged 36, was younger than 40.
After the interview process, the 36 year old applicant (SE), a District
Staff Engineering Specialist from the Field Operations Office, was
selected for the Position.
Appellant contends that he was obviously better qualified than the
SE, such that the only explanation for his non-selection had to be
discrimination based on his age. In particular, appellant asserts
that he had a superior education, with a B.S. degree in Petroleum
Engineering in addition to an M.A. degree in Economics with a minor in
Finance, while the SE had only a B.S. degree in Petroleum Engineering.
Also, appellant states that his engineering experience was far superior,
noting that he had 15 years of experience in the commercial oil and gas
industry, 2 years with the U.S. Geological Survey, and 5 years with MMS,
while SE had only 2� years of experience in the commercial oil and gas
industry prior to his employment with the MMS in 1983. Additionally,
appellant asserts that he had far more supervisory experience, noting
his 1975 military supervisory experience, and four years of experience
supervising Engineers while in private industry, as compared to the SE's
four months as acting District Supervisor. Moreover, appellant contends
that the selection process itself was discriminatory because interviewing
only three of the applicants violated personnel rules and regulations
requiring that all applicants on an MPC must be treated equally.
SO1 and SO2 both stated that age was not a factor in the selection
process, and that the use of the matrix was designed to be an impartial
and objective method of making the selection. They also testified that
they were not aware that interviewing only three applicants from an
MPC violated personnel rules. Each SO indicated that SE was selected
based on his experience in the District Office, which was deemed very
relevant and desirable, as well as his exceptional performance while
acting as District Supervisor, which is the Position at issue. SO1 also
indicated that he was personally familiar with both appellant and SE, and
preferred SE's management style and his ability to communicate orally,
both deemed important factors in the selection process. Neither SO
thought that appellant's advanced degree was relevant to the Position,
and it was noted that SE had completed both technical and managerial
training which appellant had not.
Based on this evidence, the FAD concluded that appellant established
a prima facie case of age discrimination, but that the evidence was
insufficient to show that the agency's reasons for its actions were
pretextual, and a finding of no discrimination was made on the case.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a discrimination case is
a three-step process. Appellant has the initial burden of establishing
a prima facie case of discrimination. If appellant meets this burden,
then the burden shifts to the agency to articulate some legitimate,
nondiscriminatory reason for its challenged action. Appellant must then
prove, by a preponderance of the evidence, that the legitimate reason
articulated by the agency was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Although this analysis was developed in the context of Title VII, it is
equally applicable to claims brought under the ADEA.
Under the ADEA, appellant can establish a prima facie case of
discrimination by showing that: (1) he is at least forty (40) years
old; (2) he was qualified for the position; (3) he was not selected
for the position; and (4) he was accorded treatment different from a
member of his protected group or who was considerably younger than he.
See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996);
Terrell v. Department of Housing and Urban Development, EEOC Appeal
No. 01961031 (October 25, 1996).<1> In an ADEA case, the ultimate burden
remains on appellant to demonstrate, by a preponderance of the evidence,
that age was a determinative factor in the sense that, �but for� his age,
he would not have been subjected to the action at issue. Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979); Fodale v. Department of Health and Human
Services, EEOC Request No. 05960344 (October 16, 1998).
The Commission concurs with the FAD's finding that appellant successfully
demonstrates a prima facie case of age discrimination because he was 43
years old at the time of the selection, was qualified for the position,
and was not interviewed for the Position, while a younger employee was
interviewed and selected. We also concur in the finding that the agency
articulated legitimate, nondiscriminatory reasons for its actions by
stating that SE was selected primarily because of his experience in the
New Orleans District in Field Operations, his outstanding performance
while filling the Position in an acting capacity for four months, and his
personal attributes as a manager. We additionally concur in the FAD's
finding that appellant failed to demonstrate that these reasons were
a pretext for age discrimination, and we further find that appellant
did not present sufficient evidence to show that �but for� his age,
he would have been interviewed and selected for the position at issue.
Appellant bears the burden of establishing that the agency's articulated
reasons are a mere pretext for discrimination. Appellant can do this
either directly, by showing that a discriminatory reason more likely
motivated the agency, or indirectly by showing that the agency's
proffered explanation is unworthy of credence. In St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993), the Supreme court noted that a fact
finder must be persuaded by the complainant that it was discrimination
that motivated the employer to act as it did. According to the Court,
it is not sufficient �to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination.�
Id. At 519 (emphasis in original). Moreover, in a non-selection case,
pretext may be demonstrated in a number of ways, including a showing
that an appellant's qualifications are observably superior to those of
the selectee. Bauer v. Bailar, 647 f.2d 1037, 1048 (10th Cir. 1981).
We note, however, than an employer has the discretion to choose among
equally qualified candidates. Canham v. Oberlin College, 666 F.2d 1057,
1061 (6th Cir. 1981).
Appellant's primary contention is that he was better qualified than the
SE for the Position. The evidence of record, however, does not support
this contention. Both SE and appellant had the same educational background
and professional certifications with respect to petroleum engineering,
and they each had nearly the same number of years of experience in this
field, with the majority of appellant's in the private sector, and the
majority of the SE's with the agency's MMS. Although appellant had more
years of supervisory experience, it was not as recent as SE's, and not
as relevant to the duties of the Position. Given that appellant and SE
had very comparable qualifications, we find that the agency's reasons
for SE's selection, as noted above, are credible and not a pretext for
age discrimination.
Additionally, although we do find that the agency's personnel rules were
violated when all of the applicants on the MPC were not interviewed,
review of the testimony of SO1 and SO2, as well as various personnel
specialists and officials, indicates that there was confusion about the
applicability of this rule. In fact, one of the personnel specialists
erroneously advised SO2 that they didn't need to interview all of the
applicants, and SO1 testified that he thought the rule meant that you
could interview all applicants on the MPC, but that it was not required.
Therefore, we find that this violation was committed in good faith,
and that it is not evidence of pretext.
Moreover, we have carefully reviewed the entire record before us and
we do not find any evidence to suggest that �but for� appellant's age,
he would have been interviewed and selected. Both SO1 and SO2 offered
unrebutted testimony that age was not a factor in SE's selection,
and that SE was selected based on his experience in District Field
Operations and his personal attributes and training as a manager. Also,
two of the three applicants interviewed were older than 40, and given the
same consideration as SE. We note that appellant fails to provide any
evidence that his age was a factor, making only a bare assertion that it
must have been the reason for his non-selection. Therefore, appellant has
failed to meet his burden of proof under the legal authority cited above,
and we find that that he has not established that he was discriminated
against as alleged..
Accordingly, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
May 13, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1We note that this is only one method of establishing a prima facie case
of age discrimination, and that a complainant is not precluded from such
a showing merely because the comparative employee(s) is not considerably
younger. See Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002 (September 18, 1996).