01986392
08-06-1999
Millard Graham, Appellant, v. Daniel L. Glickman, Secretary, Department of Agriculture, Agency.
Millard Graham v. Department of Agriculture
01986392
August 6, 1999
Millard Graham, )
Appellant, ) Appeal No. 01986392
v. ) Agency No. 930927
Daniel L. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
DECISION
Appellant timely initiated an appeal to this Commission from a final
agency decision ("FAD") concerning his complaint of discrimination in
violation of Title VII of the Civil Rights Act of 1964, 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. Section 621 et seq. The appeal is
accepted pursuant to the provisions of EEOC Order No. 960.001. In his
complaint, appellant alleged that he was discriminated against based
on his age (date of birth: October 29, 1926) and reprisal for prior
EEO activity when he was not selected for the position of Supervisory
Biologist (Wildlife), GS-9 (the "Position").
In June 1993, appellant, then a Biological (Wildlife) Technician, GS-7,
in the Colorado State Region, applied for the Position, which was located
in the Utah State Region. Appellant was found qualified for the Position
and was interviewed (telephonically) by a Behavioral Events Interview
("BEI") panel. The five-member BEI panel ranked the six candidates
in eight categories; appellant was the lowest ranked candidate in each
category. The ultimate selectee (under age 40, no prior EEO activity)
had received the highest ranking in each category. Appellant timely sought
EEO counseling, and his instant complaint was accepted and investigated
by the agency. After appellant failed to request a hearing before an
EEOC Administrative Judge, the agency issued its instant FAD, finding
no discrimination.
The State Director for the Utah Region, who was the selecting official
("SO"), stated that he considered the ranking and notes of the interviews
made by the BEI panel, but made the selection decision himself. The SO
averred that he chose the selectee because the selectee's application
and interview reflected his experience with the National Environmental
Policy Act ("NEPA") and compliance under the Endangered Species Act,
and because the selectee had recent agency supervisory experience.
The BEI panel members provided affidavits setting forth their reasons
for the rankings given to appellant and the selectee.
While none of appellant's prior complaints involved the SO or BEI
panelists, the record reflects that the SO had heard that appellant had
filed at least one prior EEO complaint concerning a decision made by the
State Director for the Nebraska Region. After appellant's application
was received, the SO mentioned this to one of the panelists.
Appellant contended that he was more qualified than the selectee because
he had: (a) been found eligible for the Position when it was originally
announced at the GS-11 level and, therefore, was highly qualified to fill
it at the GS-9 level; (b) far more agency experience than the selectee
and, therefore, his exposure to different types of work was broader
than the selectee's; and (c) non-government supervisory experience
as the founder of a hot water and heating business. Appellant also
protested that the BEI panel had not specifically asked him whether he
had experience with the NEPA.
In its FAD, the agency expressed concern that the SO had informed a
panelist that appellant had filed a prior EEO complaint. However,
after a review of the matter and particularly in light of the fact
that all five panelists had rated appellant as the lowest candidate in
every category, the agency concluded that appellant failed to establish
that the legitimate, nondiscriminatory reasons articulated by all five
panelists and the SO for their employment decisions were a pretext for
discrimination based on age or reprisal.
Appellant did not submit comments on appeal. In its comments, the agency
contends that its FAD properly found no discrimination or reprisal.
As this case alleges employment discrimination based on age and reprisal,
it is the burden of the complainant initially to establish that there is
some substance to his or her allegation. In order to accomplish this,
the complainant must establish a prima facie case of discrimination.
McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). This means
that appellant must present a body of evidence such that, were it not
rebutted, the trier of fact could conclude that unlawful discrimination
did occur. The burden then shifts to the agency to articulate a
legitimate, non-discriminatory explanation for its action. Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard,
the agency need only produce evidence sufficient "to allow the trier of
fact rationally to conclude" that the agency's action was not based on
unlawful discrimination. Id. at 257. Once the agency has articulated such
a reason, the question becomes whether the proffered explanation was the
true reason for the agency's action, or mere pretext. The burden then
shifts back to appellant to show, by a preponderance of the evidence,
that the agency was more likely motivated by discrimination, or that the
agency's proffered explanation is unworthy of credence. Burdine, 450
U.S. at 256. While the burden of production may shift, the ultimate
burden of persuasion remains on appellant at all times. See Board
of Trustees of Keene College v. Sweeney, 439 U.S. 24, 25 n. 2 1978).
This analysis, developed in the context of Title VII proceedings, applies
to cases alleging reprisal (see Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd 545 F.2d
222 (1st Cir. 1976)) and also applies to cases arising under the ADEA
(see Jackson v. Sears, Roebuck & Co., 648 F.2d 225 (5th Cir. 1981)).
Applying the analytical framework set forth above, the Commission
finds that appellant established a prima facie case of age and reprisal
discrimination, but failed to establish that the agency's articulated
reasons for his nonselection were a pretext to mask discrimination.
While appellant points to his extensive experience with the agency,
the record supports the agency's contention that the selectee was
highly qualified for the position. Thus, in order to establish that
the agency's articulated reason is pretextual, appellant must either
show that a discriminatory reason more likely motivated the agency or
that the agency's proffered explanation is unworthy of credence. Burdine,
450 U.S. at 253. In a nonselection 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). Having considered the evidence of record,
we find that appellant has not demonstrated that his qualifications for
the position were "observably superior" to those of the selectee. The
Commission agrees with the agency that the SO should not have discussed
appellant's EEO activity with one of the panelists. However, given that
the other four panelists awarded appellant similarly low ratings on all
eight categories, the Commission concludes that appellant nonetheless
failed to establish that the agency officials were more likely motivated
by a retaliatory animus. Accordingly, we find that appellant has not
established discrimination based on age or retaliation. Consequently,
after a careful review of the entire record, it is the decision of the
Commission to AFFIRM the FAD in this matter.
STATEMENT OF RIGHTS-ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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:
August 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations