01992712
03-01-2000
Gene E. Thomas, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Gene E. Thomas, )
Complainant, )
) Appeal No. 01992712
v. ) Agency No. 95-4188R
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning his complaint of unlawful employment discrimination on
the bases of race (Caucasian), color (White), and age (Date of Birth:
9/11/35) in violation of Title VII of the Civil Rights Act of 1964,
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<1>
Complainant alleges that the agency discriminated against him when
he was not selected for the Equal Employment Opportunity Specialist
(Specialist) position. The appeal is accepted pursuant to pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the FAD.
ISSUE PRESENTED
The issue on appeal is whether the agency discriminated against the
complainant on the above bases when it did not select complainant for
the Specialist position.
BACKGROUND
The record reveals that during the relevant time, complainant was
a retired United States Army EEO Specialist. The agency's Denver,
Colorado Mint facility published a vacancy announcement from May
4, 1994 through June 2, 1994. Complainant timely applied for the
Specialist position. After a few months delay in selecting applicants,
the agency only interviewed four applicants. Complainant was not one
of the selected interviewees. Complainant alleged that he was not
interviewed or selected for the position because of his race, color,
and age, although he was on one of the best qualified lists.<2> The
agency tentatively selected applicant number nine (TS) for the position.
TS did not accept the position. The agency reannounced the vacancy in
October 1994.
Believing he was a victim of discrimination, complainant sought EEO
counseling, and subsequently, he filed a complaint on January 24, 1995.
At first, the agency dismissed the complaint on the grounds that the
complaint failed to state a claim. The complainant appealed FAD 1 to
the Commission. The appellate decision remanded the complaint to the
agency for an investigation.<3>
At the conclusion of the investigation, complainant requested that
the agency issue a final agency decision. The agency issued FAD 2 on
January 25, 1999. FAD2 concluded that complainant established a prima
facie case of race, color, and age discrimination when he demonstrated
that similarly situated employees not in his protected classes were
treated differently than him under similar circumstances. However, FAD
2 asserted that the complainant failed to show the agency's articulated
reasons for his nonselection were a pretext for discrimination.
On appeal, complainant contends that the agency was deceptive during
the hiring process because it was motivated by discriminatory animus.
The agency requests that we affirm FAD 2.
ANALYSIS AND FINDINGS
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell Douglas
Corporation v. Green. 411 U.S. 792 (1973). Loeb v. Textron, Inc.,
600 F.2d 1003 (1st Cir. 1979) (applying the McDonnell Douglas three-part
analysis to age discrimination 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. Id. 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
action. 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). In cases where the
complainant alleges age discrimination, the complainant must establish
that age was a determinative factor in the sense that �but for� his age,
the complainant would not have been subjected to the action at issue.
See Loeb, supra.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its action. Specifically, the
agency stated that it wanted to hire an applicant with current specialized
EEO experience. Accordingly, it created two lists of candidates with this
experience. While complainant was on one of the certificates, he did not
demonstrate the current level of EEO experience that the agency needed.
He had been retired from the EEO field for approximately six years.
The other candidates who were interviewed were current EEO managers
or specialists. The agency believed these candidates had up to date
knowledge of the changing EEO regulations and recent court decisions.
This current experience was important to the agency due to the extreme
backlog of discrimination cases in the Denver, Colorado Mint EEO office.
Just as importantly, the agency did not have the time or resources to
train someone without specialized EEO experience or to bring a former
EEO specialist up to date in the EEO field. As a result, complainant
was not selected for an interview.
The Commission finds that complainant failed to present evidence that,
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. In reaching this conclusion, we
note that the agency interviewed other applicants in the complainant's
protected classes (Caucasian, White, and over 40 years of age). The
agency interviewed those applicants with the most current EEO training
and experience.
CONCLUSION
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 (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
03/01/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 Equal Employment Assistant 1 On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding
the present appeal. The regulations, as amended, may also be found
at the Commission's website at WWW.EEOC.GOV.
2 The agency created two lists of candidates. The first list, the
competitive placement certificate, included applicants who had not
achieved the GS-12 grade level. The Specialist position would be a
promotion for these six individuals. The second list, the non-competitive
placement certificate, included complainant and other applicants who
had achieved the GS-12 grade level. The Specialist position would be
a lateral move for these seven individuals.
3 See EEOC Appeal No. 01956108 (June 12, 1996), request for
reconsideration denied, EEOC Request No. 05960720 (March 26, 1998).