01A15217
10-24-2002
Douglas L. Rankin, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.
Douglas L. Rankin v. Department of Defense
01A15217
October 24, 2002
.
Douglas L. Rankin,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance and Accounting Service),
Agency.
Appeal No. 01A15217
Agency No. DFAS-CO-0000R-00-015
Hearing No. 220-A1-5016X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that he was discriminated against on the basis of
his age (D.O.B. March 23, 1944) when the agency did not select him for
a GS-501-13 Supervisory Financial Specialist position advertised under
vacancy announcement No. CO-003-00, in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The record reveals that complainant applied, received an interview, but
was not selected for the Supervisory Financial Specialist position.
The agency selected a 36 year old applicant. Believing that he
was discriminated against, complainant filed a formal complaint
of discrimination on March 8, 2000. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge.
The Administrative Judge conducted a hearing and issued a decision
finding no discrimination.
The Administrative Judge found that complainant established a prima
facie case of age discrimination. In so finding, the Administrative
Judge noted that complainant was at least 40 years old at the time of
the adverse action; he was subjected to an adverse action as he was
not selected; and the agency selected a 36 years old for the position.
The Administrative Judge found that the agency proffered a legitimate
nondiscriminatory reason for not selecting complainant for the Supervisory
Financial Specialist position inasmuch as complainant had a lower
over-all rating than the selectee. Ultimately, the Administrative
Judge concluded that complainant failed to establish that the agency
discriminated against him on the basis of his age. The agency issued
a final decision dated September 10, 2001, fully implementing the
Administrative Judge's decision. This appeal followed.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National Labor
Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding
regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An Administrative Judge's conclusions of law are subject to de novo
review, whether or not a hearing was held.
In the instant case, complainant suggests that he was better qualified
than the selectee in terms of education and experience. Complainant also
asserts that the agency has demonstrated a pattern of not selecting
older applicants, favoring younger applicants instead. In support of
his claim, complainant indicates that the agency made 20 selections to
GS-13 positions during the period beginning in May 1999 and ending in May
2001 and that although 74.4% of the applicants were over 40 years old, of
the 20 candidates who were selected, 80% of the selectees were under 40.
The agency's chief of financial management testified that she was the
selecting official and an interview panelist for the vacancy at issue.
The chief explained that four candidates were interviewed for the
Supervisory Financial Specialist position. Following the interviews,
the panel gave each candidate a consensus score. In addition to this
consensus interview score, the chief indicated that she, independently,
scored each candidate based upon their appraisals and education. Each
candidate was then given a total score which represented the sum of the
interview score, performance appraisal score, and education score. It is
undisputed that the agency selected the candidate with the highest score.
There is no dispute that complainant has made a prima facie case of age
discrimination and that the agency has articulated a nondiscriminatory
reason for its selection. To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. 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); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department
of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The evidence offered by complainant that the agency selects younger
applicants for GS-13 positions is not sufficient proof that complainant,
himself, was discriminated against with reference to the Supervisory
Financial Specialist position advertised under vacancy announcement
No. CO-003-00. Nor can we find sufficient evidence that the agency
intentionally overlooked complainant's superior qualifications in
order to select a younger candidate. In cases involving allegations
of discriminatory non-selection, it is well settled that evidence of
�observably superior� qualifications is probative of whether the agency's
reasons are a pretext for discrimination. Bauer v. Bailor, 647 F.2d
1037, 1048 (10th Cir. 1981); Castillo v. Department of Transportation,
EEOC Appeal No. 01984618 (August 8, 2001); Williams v. Department of
Education, EEOC Request No. 05970561 (August 6, 1998). However, we
credit the Administrative Judge's factual determination that the selectee
had more recent relevant budget experience, had previously served in a
detail to the position, and that he possessed higher performance appraisal
ratings than complainant. Complainant has failed to demonstrate that the
Administrative Judge's factual determinations are against the substantial
evidence in the record. 29 C.F.R. � 1614.405(a).
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the final agency
order because the Administrative Judge's ultimate finding, following
a hearing, that unlawful employment discrimination was not proven by a
preponderance of the evidence, is supported by the record.
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 24, 2002
__________________
Date