01A14882
10-08-2002
David B. Davies, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Investigations), Agency.
David B. Davies v. Department of Justice
01A14882
October 8, 2002
.
David B. Davies,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Federal Bureau of Investigations),
Agency.
Appeal No. 01A14882
Agency No. F-99-5352
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. 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 Photographic Technologist in the agency's Audio Video
and Image Analysis Unit, Laboratory Division, Investigative Support
Section in Washington, D.C. Complainant sought EEO counseling and
subsequently filed a formal complaint on May 27, 1999, alleging that he
was discriminated against on the bases of age (D.O.B. October 12, 1946)
and reprisal for prior protected activity when:
(1) on or about March 24, 1999, he was not promoted to the GS-14
level; and
on or about April 25, 1999, an employee under his supervision (CW1)
was reassigned to another unit.
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.
In its FAD, the agency concluded that assuming, arguendo, complainant
established a prima facie case of age discrimination, it nonetheless
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the FAD found that complainant was not promoted to the
GS-14 level because he failed to meet the requirements necessary for
such promotion. The Unit Chief (S1) stated in her affidavit that she
did not recommend complainant for a promotion because he �did not show
the initiative to learn the job responsibilities of the other units so
that he could adequately supervise...in [her] absence.� (Report of
Investigation, Exhibit 11, page 5). S1 also stated that complainant
had an unprofessional attitude and despite repeatedly being told what
requirements were necessary for a promotion, he failed to accomplish them.
(R.O.I., Ex. 11, page 5).
The FAD also found that as to the issue of the transfer of an
employee formerly under complainant's supervision, S1 stated that
CW1was transferred after human resources determined that the work
CW1 was performing was incompatible with the unit to which he was
assigned. (R.O.I., Ex 11, page 4). The FAD found that the Section Chief
of ISS supported S1's contention that CW1 was transferred because his job
description and responsibilities were more appropriate to the Forensic
Studio Subunit. (R.O.I., Ex. 12, page 4-5). As to the basis of reprisal
discrimination, the FAD found that complainant failed to establish a prima
facie case, in that he had not engaged in any prior protected activity.
On appeal complainant reiterates his contention that S1 changed the
requirements for promotion to the GS-14 level to include supervisory
responsibilities, which had not previously been necessary for the
promotion. Complainant also alleges that the investigation was
incomplete. The agency requests that we affirm its FAD.
Complainant has alleged a claim of disparate treatment which is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973); 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); and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases). 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). 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, 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. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990).
Here, the Commission finds that, assuming, arguendo, complainant
established a prima facie case of age and reprisal discrimination,
the agency articulated legitimate, nondiscriminatory reasons for its
actions. Initially, we find that with respect to the transfer of CW1
from complainant's supervision, we concur with the agency's finding
that complainant has failed to establish that the agency's legitimate,
nondiscriminatory reasons were pretextual. As to being denied a promotion
to the GS-14 level, while the record reflects that there is some question
as to the exact requirements that needed to be met for promotion to GS-14,
we find that complainant has failed to establish, by a preponderance of
the evidence, that he was not promoted on the bases of unlawful reprisal
or age discrimination. Further, complainant has failed to show that
any changes in the requirements for obtaining a promotion to GS-14 that
occurred were undertaken so as to obstruct him in qualifying for the
GS-14 level. We note that although it is clear that two of complainant's
co-workers, outside of his protected class, were promoted to the GS-14
level before complainant, despite complainant having more seniority, the
record establishes that both employees had fulfilled the requirements
for promotion while complainant had not. Finally, with respect to
complainant's contention on appeal that the agency's investigation was
incomplete, we find that the agency conducted an investigation sufficient
to allow the Commission to make findings on the issues alleged.
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
October 8, 2002
__________________
Date