01A04948
09-04-2001
Benjamin F. Mathews, Complainant, v. Arthur Levitt, Jr., Chairman, Securities and Exchange Commission, Agency.
Benjamin F. Mathews v. U.S. Securities & Exchange Commission
01A04948
September 4, 2001
.
Benjamin F. Mathews,
Complainant,
v.
Arthur Levitt, Jr.,
Chairman,
Securities and Exchange Commission,
Agency.
Appeal No. 01A04948
Agency No. 25-98
Hearing No. 100-AO-7085X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD), dated June 19, 2000, concerning his equal employment opportunity
(EEO) complaint of unlawful employment discrimination in violation of
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. Complainant alleged he was discriminated against on the basis
of age (DOB:January 21, 1938) when he was not hired by the agency for
a staff accountant position.
Complainant first applied for an accountant position with the agency
in 1997. He was not selected and did not challenge that non-selection.
In December 1998, the complainant submitted a second application for
an accountant position. He was not interviewed or selected for this
position. Complainant concluded that based on his experience and
credentials that he was among the most qualified for the position.
Complainant concluded that his non-selection was due to age
discrimination.
The agency announced seven interim cut-off dates for submission of
applications. Four candidates were eventually selected for accountant
positions under the announcement. One was selected from the first
period, one from the third period, and two from the sixth cut-off period.
No candidates were selected from the second, fourth, fifth, and seventh
periods. Complainant was an applicant for the second period, and did
not submit an application for any other period.
The complainant filed a formal EEO complaint with the agency on July 27,
1998, alleging that the agency had discriminated against him as referenced
above. At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ, assuming, arguendo, that complainant could meet his burden
of establishing a prima facie case concluded that the agency had
articulated nondiscriminatory reasons for its action. Specifically,
the AJ found that the agency made no selections for the position from
the Certificate of Eligibles for the second cut-off period. The AJ
found that since there were no selections made from the second cut-off
period then the complainant could not show that a younger applicant was
treated better than the complainant. Further, the agency indicated that
the complainant would not have been selected because he lacked the most
important requirement for the position; recent agency related experience.
The FAD implemented the AJ's decision. Complainant makes no new
contentions on appeal, and the agency requests that we affirm its FAD.
The complainant's complaint alleged a claim of age discrimination in his
nonselection. The Commission applies the standards set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973); Prewitt v. United States
Postal Service, 662 F.2d 292, 310 (5th Cir. 1981); Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979) (requiring a showing that age was a
determinative factor, in the sense that "but for" age, complainant would
not have been subject to the adverse action at issue). 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). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of a
prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases 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 the complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. U.S. Postal Service Bd. Of Governors v. Aikens, 460
U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation,
EEOC Request No. 05900467 (June 8, 1990); Washington V. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming, arguendo, that the complainant established his prima facie
case of discrimination based on his age, the Commission finds that
the agency has articulated legitimate, nondiscriminatory reasons for
its actions. The burden returns to the complainant to establish that
the agency's reasoning was pretext for discrimination. Upon review,
the Commission finds that the complainant has failed to do so.
The Commission notes that in nonselection cases, pretext may be found
where the complainant's qualifications are demonstrably superior to
the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
The complainant argues that he was better qualified than selectees in
other cut-off periods, however he did not apply during the other cut-off
periods. The agency considered complainant only with the applications
received during the same period. The agency did not hire any applicant
from the second period. Moreover, complainant also failed to prove that
the agency's assertion that he lacked recent agency related experience
was a pretext for age discrimination in his nonselection. We note that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's age.<1>
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We discern no basis to
disturb the AJ's decision. Therefore, we AFFIRM the agency's decision.
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 4, 2001
Date
1 The complainant received an inaccurate statement from an agency
official concerning his nonselection, in that those selected had higher
scores. The agency submits that this was an inadvertent statement made
by a person with only limited involvement in the selection process.