0120102411
10-07-2010
Charles H. Farley, Complainant, v. Jeffery N. Trimble, Executive Director, Broadcasting Board of Governors, Agency.
Charles H. Farley,
Complainant,
v.
Jeffery N. Trimble,
Executive Director,
Broadcasting Board of Governors,
Agency.
Appeal No. 0120102411
Hearing No. 430-2008-00558X
Agency No. OCR-08-13
DECISION
On May 12, 2010, Complainant filed an appeal from the Agency's May 7, 2010, final action 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. For the following reasons, the Commission AFFIRMS the Agency's final action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Electronics Technician, GS-11, at the Agency's Greenville Transmitting Station (GTS). Report of Investigation (ROI) at 17.
Complainant filed an EEO complaint dated January 18, 2008, alleging that the Agency discriminated against him on the basis of age (over 40) when:
1. Complainant was not selected for a Radio Technician position.
2. Complainant was subjected to a hostile work environment.
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 timely requested a hearing. Complainant submitted a Motion For Partial Summary Judgment. Thereafter, the Agency submitted a Motion for Decision Without a Hearing. The AJ assigned to the case denied Complainant's Motion For Partial Summary Judgment and granted the Agency's Motion for Decision Without a Hearing. The AJ issued a decision without a hearing on April 30, 2010. In his decision, the AJ noted that Complainant filed a motion to consolidate a claim of "ongoing harassment and a hostile ageist environment." The AJ stated these claims constituted a retaliation claim and found the retaliation claim not germane to the present complaint.
With regard to his non-selection claim, the AJ noted that the Agency stated the Selectee was chosen because he was "vastly" more qualified than Complainant. The AJ noted members of the Panel were familiar with the candidates' overall work histories and qualifications and rated the Selectee as their top choice. The AJ noted that the Selecting Official stated that the Selectee is very familiar with all standard operating procedures, maintenance procedures, and technical knowledge for troubleshooting transmitters and every kind of electrical and mechanical system and subsystem at the Station. The AJ noted that the Selectee was known to the Selecting Official and other supervisors to be a problem solver and a person who works well with other Station employees. The Selecting Official noted that the Selectee's demonstrated ability to quickly and efficiently implement operational and maintenance procedures and troubleshoot transmitters was superior to all the candidates who applied.
The AJ noted that in an attempt to prove pretext, Complainant cited an isolated age-related comment by Panel Member 1 and a comment by a co-worker as evidence of the Agency's age-based bias. The AJ noted that the described comments by Panel Member 1 were "You know, he just made some really uncalled for comment like, Really tough getting old, isn't it [Complainant]? Or damn, look at that, [Complainant] is working hard, must be killing him or something like that." The AJ noted Complainant also cited an additional age-based comment made by a co-worker "perhaps a decade back," that the Agency needed to "fire all these old guys and get some young people in here, pay them less." The AJ found the comments were stray remarks which were not accompanied by an official Agency adverse action.
The AJ noted that Complainant claimed he was more qualified based on his tenure with the Agency and his detail as an acting supervisor for four months. However, the AJ found Complainant failed to show that his qualifications were superior to those of the Selectee.
Moreover, the AJ determined that the age-related comments Complainant cited were isolated and cannot objectively be construed as intimidating, hostile, or offensive. The AJ found the comments did not rise to the level of actionable harassment. The AJ noted that neither comment was ever contemporaneously accompanied by an official Agency action. Furthermore, the AJ determined that even if Complainant established the prima facie elements of a hostile work environment, he has not established that liability should attach to the Agency. Specifically, he AJ noted that the age-related comments at issue were first raised by Complainant during the processing of his complaint. Thus, the AJ determined Complainant failed to show that the Agency had actual or constructive knowledge of harassment allegations, which is necessary to impute liability to the Agency for failure to address and/or remedy the harassment.
The Agency issued a final action on May 7, 2010. The Agency fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant claims the AJ failed to consolidate with his current ADEA non-selection claim with his subsequent ADEA non-selection complaints in 2009 and 2010 for promotion to a GS-12 at GTS. Complainant also claims that he had numerous years more experience and was more qualified than the Selectee. Complainant alleges that the Agency's policy and practice favors younger applicants for GS-12 Supervisory Electronic Technicians as a stepping stone for them to be promoted to Foreign Service Officer positions.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.A. (November 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").
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). He must generally establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Upon review, we find the issuance of summary judgment was appropriate as the record in this case was fully developed and there are no genuine issues of material fact. At the outset, we find Complainant has not shown that the AJ abused his discretion in denying Complainant's Motion to Amend his complaint to include his subsequent 2009 and 2010 non-selections. Additionally, we find Complainant failed to show any evidence of any Agency "policy or practice" that had a disparate impact based on age.
Upon review, we find that the Agency articulated legitimate non-discriminatory reasons for its actions. Specifically, the Agency stated that the Selectee chosen was more qualified than Complainant. Complainant has failed to show that his qualifications were plainly superior to those of the Selectee. Additionally, Complainant failed to show that the Agency's actions were a pretext for prohibited discrimination. Moreover, we find Complainant has not shown that he was subjected to a hostile work environment based on age.
CONCLUSION
Accordingly, the Agency's final action finding no discrimination is AFFIRMED.
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 (November 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 (S0610)
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 (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
10/7/10
__________________
Date
2
0120102411
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120102411