01A23028_r
11-06-2002
Garrie D. Jones, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Garrie D. Jones v. Department of Justice
01A23028
November 6, 2002
.
Garrie D. Jones,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A23028
Agency No. P-2000-0133
Hearing
No. 240-A1-5010X
DECISION
Complainant filed an EEO complaint in which he claimed that the agency
discriminated against him on the basis of his age (51) when on February
15, 2000, he was not selected for a Senior Officer Specialist, GS-8,
position at the United States Penitentiary in Terre Haute, Indiana.
The record reveals that complainant is employed by the agency as a
Correctional Officer, GS-7. Complainant has worked for the agency for
18 years. Complainant was eligible for the Senior Officer Specialist
position as a non-competitive candidate on the basis of his prior
experience as a GS-8 equivalent food service worker. The Warden
selected nine candidates for the Senior Officer Specialist positions.
According to the Warden, he made his choices based on the performance
appraisals and recommendations from the Associate Warden and the Captain.
The record reveals that eight of the nine selectees had overall ratings
of �Outstanding� on their performance appraisals. The other selectee
had an overall rating of �Exceeds�with a rating of �Outstanding� in
two out of the five job elements. Complainant also received an overall
rating of �Exceeds,� but he did not receive any �Outstanding� ratings
in his five job elements. The Warden stated that service in sensitive
or critical posts was also a factor in his selection decisions.<1>
The Captain testified that his recommendations for the Senior Officer
Specialist positions were based on the employees' work performance,
attitudes, and experience working in critical posts.
The EEO complaint was accepted for investigation. Subsequent to the
completion of the agency investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The hearing was held and
afterwards the AJ issued a decision dated January 24, 2002, finding that
complainant had not been discriminated against on the basis of his age.
The AJ found that the agency articulated legitimate, non-discriminatory
reasons for its nonselection of complainant. The AJ noted that the
selecting official testified that he did not select complainant due to
his work performance, attitude toward work, and because his experience
in high profile posts was not as high as those selected. The AJ found
that complainant failed to establish, by a preponderance of the evidence,
that the agency's stated reasons were pretextual. The AJ observed that
complainant's most recent performance evaluation was not equal to those
of the selectees. The AJ also observed that complainant's experience
in working in critical positions was several years before the warden or
recommending officials began working at the Terre Haute Penitentiary.
Finally, the AJ stated that complainant's statistical argument lacked
merit in light of the fact that 81 percent of the applicants for the
positions were under the age of forty.
The agency issued a final order dated March 25, 2002, stating that it
was adopting the findings in the AJ's decision, and fully implementing
the AJ's decision. Thereafter, complainant filed the instant appeal on
May 8, 2002. In response, the agency asserts that this appeal was not
filed in a timely manner. Because the agency has failed to show when
complainant's attorney received the agency's decision, we find that the
instant appeal was timely filed.
On appeal, complainant contends that no employees or supervisors have
complained about his work attitude. Complainant states that he worked
in critical positions such as the control room and the rear entrance,
although he acknowledges that he has not recently worked in the control
room. Complainant argues that only four of the successful applicants
have worked in the control room and none have worked the rear entrance.
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). In this
case, the Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its action. Consequently, we will dispense
with an examination of whether complainant established a prima facie
case with respect to the above cited issue and review below, the reasons
articulated by the agency for its action as well as complainant's effort
to prove pretext.
The Warden testified that complainant's work performance was a
factor in his nonselection. The record reveals that eight of the
Warden's nine selections for the Senior Officer Specialist positions
had overall ratings of �Outstanding� on their performance appraisals,
whereas complainant's overall rating was �Exceeds�. The record further
reflects that the one selectee who had an overall rating of �Exceeds� had
a rating of �Outstanding� in two job elements, whereas complainant had
a rating of �Exceeds� in all five job elements. The Warden testified
that complainant's attitude toward work and experience in high profile
posts were not as high as the selectees. We find that the agency has
articulated legitimate, nondiscriminatory reasons for its nonselection
of complainant.
We find that complainant has failed to refute the agency's position
that he was not as well qualified as the nine selectees for the Senior
Officer Specialist positions. The record supports the agency's position
that the selectees had better performance evaluations than complainant.
Complainant has not demonstrated that he has recently served in critical
positions or that his experience in such positions is superior to that of
the selectees. We find that complainant has not shown, by a preponderance
of the evidence, that the agency's stated reasons for his nonselection
were pretext 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 decision,
because a preponderance of the record evidence does not establish that
age 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
November 6, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Warden stated that such assignments included the control center,
the rear gate, some investigative posts, and the segregation unit.