01A40863_r
03-03-2004
Kenneth J. Rowe, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Kenneth J. Rowe v. Department of Veterans Affairs
01A40863
March 3, 2004
.
Kenneth J. Rowe,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A40863
Agency No. 200J-0506-2002101900
Hearing No. 220-A2-5306X
DECISION
Complainant filed a formal EEO complaint in which he claimed that the
agency discriminated against him on the basis of his age (59) when:
(1) in January 2002, he was not selected for the position of Nursing
Assistant, GS-0621-04/05 and (2) in February 2002, he was not selected
for the position of Program Support Assistant, GS-0303-05/06.
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ), pursuant to complainant's request
for a hearing. Without holding a hearing, the AJ issued a decision
finding no discrimination. The AJ found with regard to the Nursing
Assistant position, that complainant failed to establish a prima facie
case of age discrimination. The AJ reasoned that complainant failed
to show that he was qualified for the position and he failed to show
that a person(s) of similar qualifications, outside of his protected age
group was selected. The AJ noted that complainant was determined to be
ineligible for consideration for the position because he did not document,
in his application materials, one year of specialized experience at the
GS-4 level. The AJ further noted that complainant had been requested
to resubmit his job application to reflect the required specialized
experience, however, complainant declined to do so. With regard to
the Program Support Assistant position, the AJ found that the agency
articulated a legitimate, non-discriminatory reason for its selection
decision. The AJ observed that the selecting official stated that he
decided to make his selection from the internal candidate certificate.
The AJ found that complainant failed to establish that the agency's
stated reason was pretextual and that his age was the basis for his
nonselection. The AJ noted that under agency regulations, a selecting
official has the right to select from any appropriate recruitment source.
The AJ further noted that the selection was made from the primary area
of consideration, internal candidates, and that complainant had been
referred from a secondary area of consideration, the Veterans Employment
Opportunities Act. On October 23, 2003, the agency issued a final order
implementing the AJ's decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
For complainant to prevail, he must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
Although McDonnell Douglas is a Title VII case, its analysis is
also applicable to disparate treatment cases brought under the ADEA.
See Sutton v. Atlantic Richfield Co., 646 F.2d 407, 411 (9th Cir. 1981).
This order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
With regard to complainant not being selected for the Nursing Assistant
position, we find that complainant failed to establish a prima facie
case of age discrimination. The record reveals that complainant did
not establish that he was qualified for the position. Complainant
was determined by the Delegated Examining Unit to be ineligible for
consideration for the position because he did not document in his
application materials one year of specialized experience at the GS-4
level. Complainant does not contest the agency's position that he
was offered an opportunity to resubmit his application to reflect the
required specialized experience, but that he failed to do so.
With respect to complainant not being selected for the Program Support
Assistant position, we shall assume arguendo, that complainant has set
forth a prima facie case of discrimination on the alleged basis of age.
Complainant was one of four candidates referred for consideration. The
selecting official explained that after he reviewed the four candidates
forwarded to him, he made his selection from the two internal candidates.
The record reveals that agency regulations allow a selection official to
make a selection from any appropriate recruitment source. Complainant was
referred under a secondary area of consideration, the Veterans Employment
Opportunities Act. Here, the selecting official utilized the primary
area of consideration, internal candidates, to make his selection.
We find that the agency articulated a legitimate, nondiscriminatory
reason for complainant's nonselection.
Upon review of complainant's arguments on appeal and elsewhere in
the record, we find that complainant has failed to establish, by
a preponderance of the evidence, that the agency's reasons for his
nonselection were pretextual and intended to mask discriminatory intent.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to affirm the agency's final order
finding no discrimination as a preponderance of the record evidence does
not establish that discrimination occurred.
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
March 3, 2004
__________________
Date