01A11163
09-16-2002
John M. Siu, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
John M. Siu v. Department of Defense
01A11163
September 16, 2002
.
John M. Siu,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A11163
Agency Nos. TA-97-017, TA-97-018, TA-97-019, TA-98-010
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Contract Specialist, GS-1102-12, at the agency's Defense Supply
Center, in Philadelphia, Pennsylvania (DSCP). Complainant sought EEO
counseling and subsequently filed three formal complaints (TA-97-017,
TA-97-018, TA-97-019) on July 3, 1997. The complaints were subsequently
consolidated. On April 3, 1998, complainant filed an amendment
(TA-98-010) to the consolidated complaints. Complainant alleged the
following:
(1) that he was discriminated against on the bases of sex (male), race
(Asian), national origin (Chinese), color (Yellow), and age (D.O.B. June
16, 1949), when he was reassigned from a Supervisory Contract Specialist,
GS-1102-12, to a Contract Specialist (non-supervisory), GS-1102-12
position, effective October 13, 1996, and thereafter not promoted to
a GS-13;
that he was discriminated against on the bases of sex, race, national
origin, color, and age, when he was notified by Memorandum, dated January
23, 1997, that he was not selected for the position of Supervisory
Product Business Specialist, GS-1101-13 (TEMP NTE 1 YR), under Job
Opportunity Announcement DPSC-89-86;
on or about April 3, 1997, his unlimited contracting officer warrant
was improperly terminated in reprisal for filing two prior complaints;
that he was discriminated against on the bases of sex, race, national
origin, color, age, and reprisal for prior EEO activity, when, on or
about August 3, 1997, he was reassigned to a non-warranted Contract
Specialist, GS-1102-12 (buyer) position description (PD); and,
that he was discriminated against on the bases of sex, race, national
origin, color, age, and reprisal for prior EEO activity, when persons
with less experience than complainant have been detailed to the acting
Chief of the Unitized Section job (Grade 13) from approximately February
1, 1999, to the present and ongoing.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
The FAD found that complainant failed to establish a prima facie case
of discrimination based on race, color or national origin as to any
issue, because he failed to identify any similarly situated individual
not in his protected classes, who was treated more favorably under
similar circumstances. However, as to issue one, the FAD found that
complainant established a prima facie case of age discrimination.
The FAD further found that the agency articulated a legitimate,
nondiscriminatory reason for the action, namely, that when complainant
was placed in a non-supervisory PD in October 1996, the agency was
merely correcting an error it had previously made. As to issue two,
the FAD found that complainant also failed to establish a prima facie
case of age discrimination. The FAD additionally found that the agency
articulated a legitimate, nondiscriminatory reason for the action,
namely, that the selectee was the best qualified for the position.
As to issue three, the FAD assumed, arguendo, that complainant established
a prima facie case of reprisal discrimination, and concluded that
the agency articulated a legitimate, nondiscriminatory reason for
the action. Specifically, that although complainant was erroneously
placed in a supervisory PD, which indicated that he was to be warranted,
complainant was actually performing the duties of a Non-supervisory
Contract Specialist which did not require a warrant, and his PD should
have reflected that. As to issue four, the FAD found that complainant
established a prima facie case of age discrimination. The FAD found,
however, that the agency articulated a legitimate, nondiscriminatory
reason for the action, namely, that in placing complainant into the
proper PD, it was merely documenting complainant's true assignment of
duties and correcting previous administrative errors. As to issue five,
the FAD concluded that complainant established a prima facie case of
age discrimination. The FAD further assumed, arguendo, that complainant
established a prima facie case of reprisal discrimination, and proceeded
to find that the agency articulated a legitimate, nondiscriminatory
reason for its action. Specifically, the FAD found that complainant
was not eligible because �consideration for the detail was limited to
employees in [DSCP-] HRU due to the need to staff the function with an
individual able to immediately assume the day-to-day requirements of the
position.� The FAD further found that complainant failed to establish
that the agency's reasons for any of the issues were mere pretext for
discrimination or retaliation.
On appeal, complainant, through his attorney, restates arguments
previously made, emphasizing the agency's procedural irregularities,
and the total exclusion of minorities from the grade level 13 and above
positions at the directorate. Complainant additionally argues that
management targeted him as a minority and engineered irregular personnel
actions with a view to excluding him from upward mobility, especially
when it was known that his grade 12 position was to be upgraded to a
grade 13 level. The agency requests that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD
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). Under the ADEA, it is "unlawful for an employer
... to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's age." 29 U.S.C. � 623(a)(1). When a complainant
alleges that he or she has been disparately treated by the employing
agency as a result of unlawful age discrimination, "liability depends
on whether the protected trait (under the ADEA, age) actually motivated
the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,
610 (1993)). "That is, [complainant's] age must have actually played a
role in the employer's decisionmaking process and had a determinative
influence on the outcome." Id.
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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department 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 Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case of
discrimination on the alleged bases, we turn to the agency to articulate
legitimate, nondiscriminatory reasons for its actions. As to issue one,
management asserted that complainant was never really a Supervisory
Contract Specialist, but upon reassignment was accidentally placed in a
supervisory PD, when he should have been placed in a non-supervisory PD.
Therefore, when complainant was placed in a non-supervisory PD in October
1996, the agency was merely correcting its error. As to issue two,
the selecting official stated that the selectee was the best qualified
for the position. The members of the interview panel asserted that the
interview was given the most weight, and the selectee performed better
in the interview than complainant. The panel members also explained
that the candidates' education and awards were given the least weight,
and the quality of the candidates' experience was more important than
the candidates' years of experience. As to complainant's assertion
that the selectee was not minimally qualified for the position, one of
the interviewers asserted that the individuals whom they considered for
the position were referred to them by the Office of Human Resources,
which makes the determination of eligibility. As to issue three,
management stated that complainant was actually performing the duties of
a Non-supervisory Contract Specialist which did not require a warrant.
As to issue four, management asserted that, in placing complainant into
the proper PD, it was merely documenting complainant's true assignment
of duties and correcting previous administrative errors. As to issue
five, consideration for the detail was limited to employees in DSCP-HRU
because of a need to staff the function with an individual who was
able to immediately assume the day-to-day requirements of the position,
and complainant did not fit this criterion.
We have carefully reviewed complainant's arguments in his attempt to
establish pretext, however, we find that complainant did not establish
that his age played a role in the employer's decision-making process and
had a determinative influence on the outcome. We further conclude that
complainant has not met his burden of establishing, by a preponderance of
the evidence, that the agency's reasons for its actions were pretext for
retaliation or discrimination on any alleged basis. In so finding, we
note that management's noncompliance with internal agency procedures does
not, by itself, establish that the agency intentionally discriminated.
We have no authority to enforce the agency's own internal procedures
where, as here, there is no evidence from which we can infer that the
agency's departure from its procedures was motivated by discrimination.
We note additionally that several times throughout the record, complainant
contends that the agency officials have made false statements. The burden
of proof remains at all times, with complainant, and although the record
shows that complainant was informed of his right to request a hearing
before an administrative judge, complainant chose not to avail himself
of this right.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
September 16, 2002
__________________
Date