0120064519
03-14-2008
Donald W. MacDonald, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Donald W. MacDonald,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01200645191
Agency No. IHS-032-04
DECISION
On July 26, 2006, complainant filed an appeal from the July 18, 2006,
final agency decision (FAD) concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), 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. � 621 et seq. The appeal is deemed
timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a Human Resources Officer at the agency's Billings Area Indian
Health Service facility in Billings, Montana. Complainant claims
that in September 2003, he applied under a vacancy announcement for a
Supervisory Human Resources Specialist position (a Team Leader position).
Complainant states that he was not interviewed, but was offered an Acting
Team Leader position. Further, complainant claims he inquired into
whether the position would be made permanent but was not given a response.
Complainant claims he was never notified by the selecting official (SO)
of his ultimate non-selection for the position, and that he found out
from one of the selectees that he was not selected. On June 7, 2004,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of sex (male) and age (D.O.B. 01/21/49) when
he was not selected for the position of Supervisory Human Resources
Specialist.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to 29
C.F.R. � 1614.110(b). The FAD found, initially, that complainant failed
to establish a prima facie case of discrimination on the alleged bases.
The FAD found that no individuals outside complainant's protected classes
were treated more favorably than he was, noting that both selectees are
male and over the age of 40 years old. The FAD then assumed arguendo
that complainant had established a prima facie case of discrimination on
the alleged bases and found that the agency had articulated legitimate,
nondiscriminatory reasons for its actions. The agency then found that
complainant had failed to present any evidence proving that the agency's
reasons were pretextual. The FAD, therefore, concluded that complainant
failed to prove that he was subjected to discrimination as alleged.
Complainant offers no new arguments on appeal. The agency asks us to
affirm the FAD.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of
the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law").
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Here, we find that complainant has failed to establish a prima facie case
of discrimination on the alleged bases. Complainant has shown that he
is a member of the protected classes and has suffered an adverse action.
The record reveals however, that the selectees are both male and over the
age of 40. We note that the selectees are in fact older than complainant
and all management officials involved in the selection process are also
over the age of 40. Therefore, we determine that complainant failed
to show that a similarly situated individual not within his protected
classes was treated more favorably than he was. Further, we find that
complainant failed to present any other evidence from which an inference
of discrimination could be drawn. Consequently, we find that complainant
failed to establish a prima facie case of discrimination.
However, assuming arguendo, that complainant had established a prima
facie case of discrimination on the alleged bases, the agency has
articulated legitimate, nondiscriminatory reasons for its actions.
SO claims that no applicants were interviewed for the position, rather
she based her selections on the strength of each candidate's application
and responses to the Knowledge, Skills, and Abilities (KSA) questions
listed on the vacancy announcement. SO claims that the two selectees were
better qualified than complainant. Further, SO claims that the selectees
were very articulate in describing their knowledge, skills, and ability.
Specifically, SO adds that the selectees were skilled in areas of managing
change, leadership, and building coalitions for a significantly larger
customer base than that to which complainant had been exposed. Finally,
SO claims that the duties that the selectees performed in their previous
positions suggest that they would be successful at managing a large,
diverse regional workforce for a large and professional customer base.
Complainant claims that he was more qualified than one of the selectees
as he had been the Area Personnel Officer while that selectee had not.2
As we do not have the benefit of an AJ's findings after a hearing, as
complainant chose a FAD instead, we can only evaluate the facts based
on the weight of the evidence presented to us. As such, we find that
complainant has failed to present any persuasive evidence that the
agency's reasons are pretextual.
We further note that the agency has broad discretion to set policies
and carry out personnel decisions, and should not be second-guessed by
the reviewing authority absent evidence of unlawful motivation. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek
v. Department of the Treasury, EEOC Request No. 05940906 (January 16,
1997). Complainant may be able to establish pretext with a showing that
his qualifications were plainly superior to those of the selectee. Wasser
v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995);
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, complainant
has failed to make this showing.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Commission
to affirm the FAD because the preponderance of the evidence of record
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 14, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 Complainant also claims that he has filed two grievances against SO
which he believes may have been a factor in his non-selection but offers
no further elaboration. In any event, the Commission has no jurisdiction
over claims of retaliation for the filing of union grievances unless
they involve allegations of certain kinds of discrimination.
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0120064519
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036