01985539
02-27-2001
John J. Griffin, Complainant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.
John J. Griffin v. Federal Deposit Insurance Corporation
01985539
February 27, 2001
.
John J. Griffin,
Complainant,
v.
Donna A. Tanoue,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01985539
Agency No. FDIC9707
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of age (53 years of age) in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The issue on appeal is whether complainant has established that the agency
discriminated against him based on the above factor when it failed to
select him for seventeen vacant positions. For the reasons stated herein,
the agency's FAD is affirmed.
According to the record, in June 1989, the agency hired complainant
to a temporary, one-year appointment as a Liquidation Assistant,
Liquidated Grade (LG) 11. Complainant left the agency ten months
later but subsequently returned in December 1990 to a temporary,
one-year appointment as a Credit Specialist Account Officer, LG-12.
From that time and until May 31, 1996, the agency continuously renewed
complainant's temporary appointment. In early 1996, complainant applied
but was not selected for sixteen Credit Specialist positions, which
included grades 9, 11, 12, and 13, and one Real Estate Management
Specialist, grade 12 position. All seventeen vacant positions were
temporary appointments. Believing he was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a complaint.
In it, he alleged that the agency discriminated against him based on
age (53) as evidenced by the following: complainant had seven years of
relevant work experience with the agency and 21 years of such experience
in the private sector, the agency awarded additional rating points based
on the recency of an applicant's relevant work experience, the selecting
official (SO) made discriminatory remarks based on age regarding another
employee, the SO had an opportunity to select complainant for a previous
position but did not do so, and the agency did not consider veterans'
preference in making its selections.
The agency stated that due to the nature of the selection process for the
positions at issue, complainant's age was not and could not have been
a factor. Specifically, the agency stated that teams were created to
determine the eligibility of applicants, a union representative met with
the teams daily to review the applications of applicants determined to
be ineligible, the applications of eligible applicants were sent to a
rating panel which always consisted of two subject matter experts and
a union representative, if the position was within the bargaining unit,
and the selection process was executed in accordance with an agreement
between management and the union.
At the conclusion of the complaint's investigation, complainant
requested a FAD without a hearing. The agency issued a FAD finding
that complainant established a prima facie case of discrimination based
on age but failed to show that more likely than not the legitimate,
nondiscriminatory reason articulated by the agency was pretextual.
Specifically, the agency concluded that complainant failed to show that
he was more qualified than the selectees but instead asserted that his
vast qualifications made him the best qualified.
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for its discrimination. McDonnell Douglas, 411 U.S. at 804. Although
this analysis was developed in the context of Title VII, it is equally
applicable to claims brought under the ADEA. Loeb v. Textron, Inc.,
600 F.2d 1003 (1st Cir. 1979).
Complainant can establish a prima facie case based on age by showing: (1)
that he is a member of the protected group; (2) that he was qualified
for the position at issue; (3) that he suffered an adverse action;
and (4) that similarly situated employees not in his protected group
were treated more favorably. See McDonnell Douglas, 411 U.S. at 802.
Element (4) of the prima facie case for discrimination based on age could
be broader in that complainant could compare himself to a similarly
situated employee within his protected group who was significantly
younger. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,
311-12 (1996). The Commission finds that complainant satisfied all four
elements necessary for a prima facie case of age. Complainant was a 53
year old who was not selected for seventeen vacant positions although
persons significantly younger than he were selected for the positions.
Now that complainant has established a prima facie case of
discrimination based on age, the agency must articulate some legitimate,
nondiscriminatory reason for its action. Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 254 (1981). According to the record,
complainant was not selected for any one of the seventeen vacant positions
because he was not the best qualified applicant for the positions as
determined by a neutral selection process.
Complainant must now show that the agency's articulated reason was mere
pretext for discrimination. Id. at 256. He may do this in one of two
ways, 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. Essentially, the fact
finder must be persuaded by the complainant that the agency's articulated
reason was false and that the actual reason was discriminatory.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
Complainant stated that the rating system used was flawed and, if it
was not, then it was used improperly. He stated further that the rating
system used weighed heavily against older workers because an older worker
may not have had the most recent relevant work experience and did not
get the benefit of the veterans' preference. Summarily, complainant
indicated that discrimination based on age is the only reason the agency
would not select a person with his years of relevant work experience.
The Commission finds that complainant's mere assertions are insufficient
and, thus, he has failed to establish pretext.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 27, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.