01A30749_r
03-19-2003
Charles E. Longus, Jr., Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Charles E. Longus, Jr. v. Department of Labor
01A30749
March 19, 2003
.
Charles E. Longus, Jr.,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A30749
Agency No. 02-11-095
DECISION
Complainant, an Unemployment Insurance Program Specialist, GS-13, filed
a formal EEO complaint in which he claimed that the agency discriminated
against him on the bases of his sex (male), race (Black), age (53) and in
reprisal for his previous EEO activity under Title VII when on February
25, 2002, he was not selected for the position of Lead Unemployment
Insurance Program Specialist (GS-106-14) in the Washington, D.C. office.
The agency investigated the complaint and thereafter complainant requested
that the agency issue a final decision on the record. By decision
dated October 29, 2002, the agency determined that no discrimination
occurred. The agency stated that the selecting official's decision was
based on the selectee's broad range of experience. The agency noted
that the selectee was the federal representative for the Alabama and
Florida unemployment compensation programs. The agency further noted
that the selectee had supervisory experience and had served as a Tax
Performance System Lead Specialist. Additionally, the agency stated
that the selectee had been responsible for the oversight of state quality
service plans and the making of presentations and speeches to federal and
state staff. According to the agency, the selecting official believed
that complainant's experience was narrow in scope because complainant
specialized in unemployment insurance benefits for ex-military personnel.
On appeal, complainant contends that his experience is more comprehensive
than that indicated by the selecting official. According to complainant,
he has acted as team leader on many occasions and has taken courses in
executive leadership at the Harvard University, John F. Kennedy School
of Government.
In response, the agency asserts that the selecting official determined
that the selectee had more comprehensive knowledge of applicable state
operating procedures and federal programs. The agency notes that two
additional senior management officials concurred with the selection.
The agency asserts that complainant did not demonstrate that he was
plainly superior to the selectee.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). 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 respect to complainant not being selected for the position of Lead
Unemployment Insurance Program Specialist, we note that an agency
has the discretion to choose among equally qualified candidates
so long as the decision is not premised on an unlawful factor.
See Burdine, 450 U.S. at 258-259; Mitchell v. Baldridge, 759 F.2d 80
(D.C. Cir. 1985). We note that in nonselection cases, pretext may be
found where the complainant's qualifications are demonstrably superior
to the selectee's qualifications. Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981). We shall assume arguendo, that complainant has
set forth a prima facie case of discrimination on the alleged bases.
The selecting official stated that the selectee was chosen based on her
work history in the unemployment insurance program and his knowledge of
her work performance and skills. The selecting official stated that the
selectee had a comprehensive knowledge of state operating procedures for
the unemployment insurance program and all related federal programs.
The selecting official also noted that the selectee had performed as
a lead person in the Atlanta Regional Office with responsibility for
federal programs. According to the selecting official, the selectee
had served as a federal representative for the Alabama and Florida
unemployment insurance compensation programs; overseen the state
quality service plans that states submit to qualify for grant monies;
served as a Tax Performance System Lead Specialist; reviewed proposed
and enacted state laws and regulations, appeal decisions, and policy
statements for conformity with federal law and policy; and she made
frequent presentations and speeches to federal and state staff on
Employment and Training Administration programs. The selecting official
stated that the selectee also had supervisory experience as a State
Operations Team Leader. The selecting official stated that complainant
and the other applicants lacked the selectee's range of experience.
The selecting official noted that complainant's experience was primarily
limited to the program which provides unemployment insurance benefits
for ex-military personnel and that complainant lacked the selectee's
supervisory experience. We find that the agency articulated legitimate,
nondiscriminatory reasons for complainant's nonselection.
Complainant contends that his work experience is more varied than that
indicated by the selecting official. Complainant stated that he has
spent almost 31 years in the agency's Washington, D.C. office working
in federal unemployment insurance benefits. Complainant stated that
his experience is more applicable than that of the selectee since he
knows how the Washington, D.C. office works and he has worked with the
people that he would be supervising if he was chosen for the position.
According to complainant, he has been designated Acting Team Leader for
the Division of Unemployment Insurance Operations on numerous occasions.
Complainant stated that there is a significant amount of policy work
done in the Washington, D.C. office, whereas the regional offices are
more concerned with implementation. Upon review of the entire record, we
find that although complainant's qualifications are impressive, they are
not so superior to that of the selectee as to warrant the conclusion that
complainant's nonselection was attributable to discriminatory motivation.
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
action 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 19, 2003
__________________
Date