01985792
06-14-2000
Gerald J. Staggs, Complainant, v. Janet Reno, Attorney General, Department of Justice (Bureau of Prisons), Agency.
Gerald J. Staggs v. Department of Justice
01985792
June 14, 2000
Gerald J. Staggs, )
Complainant, )
) Appeal No. 01985792
v. ) Agency No. P-96-8841
)
Janet Reno, )
Attorney General, )
Department of Justice )
(Bureau of Prisons), )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Caucasian) and age (47) 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>
ISSUE PRESENTED
The issue on appeal is whether complainant has established that the
agency discriminated against him based on the above factors.
BACKGROUND
During the period in question, complainant was employed as a Senior
Officer Specialist, GS-8, at a bureau of the agency. Believing he was a
victim of discrimination, complainant filed a formal complaint alleging
that the agency discriminated against him based on race (Caucasian) and
age (47) when it did not select him for the position of EEO Counselor<2>.
At the conclusion of the complaint's investigation, the agency notified
complainant of his right to a hearing before an EEOC administrative
judge or an immediate FAD. The agency issued a FAD on June 23,
1998 concluding that complainant failed to establish that the agency
discriminated against him based on race or age. It is from this decision
that complainant appealed.
The record revealed that complainant and three other individuals applied
for the position of EEO Counselor in July 1995. The position required at
least one year of service with the bureau, which was a requirement the
agency would waive for interested applicants who could not satisfy it.
The position also required objectivity as well as good communication and
interpersonal skills. All four applicants submitted an application and
a memorandum stating their qualifications and reasons for applying for
the position. The record does not contain each application, however,
it does contain each applicant's memorandum. Complainant submitted a
three and one half page summary of his experience as an elected union
official, his good communication and problem-solving skills, as well
as his legal knowledge. Each of the other three applicants submitted
a summary of less than one page in length indicating their skills and
their desire to learn and grow in the bureau. In a letter dated July
24, complainant was informed that not he but two of the other applicants
were selected. The selectees were a 30 year old, African-American male
and a 36 year old, Hispanic male.
The selecting official (SO), whose decision required concurrence by the
Central Office of the agency, offered several reasons for his selections.
He indicated that he wanted individuals who had good interpersonal skills,
who could be impartial, who others would feel comfortable approaching with
issues, and who wanted problem resolution. The SO stated, "my knowledge
of [complainant] is that he is not one that resolves issues; he is more
one that initiates issues than resolves them." The concurring official
(CO)<3> indicated that she generally concurred with the SO's selection
unless another applicant seemed better qualified. She further indicated
that there was a potential conflict of interest between the position at
issue and complainant's role as a union official.
In the record, complainant argued that he was better qualified and had
more time and seniority with the bureau than the selectees. He further
stated that the selectees were instructed to apply for the position
because they were minorities, thus, they were preselected. He added that
there were already two Caucasian EEO Counselors so the SO was trying to
diversify, that there was no career board convened to make the selection,
and that he was not a union representative in 1995.
ANALYSIS AND FINDINGS
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to
the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext for
its discrimination. Id. at 804. Although this analysis was developed
in the context of Title VII, it is equally applicable to claims brought
under the ADEA. Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
To also establish discrimination under the ADEA, complainant must
establish that age was a determinative factor in the sense that, "but
for" his age, he would not have been subjected to the action at issue.
La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409
(7th Cir. 1984).
Because the agency articulated a legitimate, nondiscriminatory reason for
its action, we may proceed directly to determining whether complainant
satisfied his burden for showing pretext. Haas v. Department of Commerce,
EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service
Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this
in one of two ways, either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the complainant that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
The SO stated that he chose the selectees based on their interpersonal
skills, their problem solving abilities, their appearance of
receptiveness, and their ability to be impartial. He specifically stated
that he did not choose complainant because he was not known as a problem
solver but instead was known as a problem starter.
Complainant contended that the agency's reasons were pretextual because
he was better qualified, he had more time and seniority with the bureau,
he did not hold his union position during the time at issue, and the
agency did not follow proper procedure in making its selections. In
a non-selection case, a complainant may establish pretext by showing
that his qualifications are plainly superior to the selectees. Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant failed to
make such a showing in this case. Based on the foregoing, complainant
failed to prove race and age discrimination.
CONCLUSION
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. 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 agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 14, 2000
____________________________
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On 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.
2This position was a collateral duty, which, in this case, meant that
it was secondary to the incumbent's primary position, it had no salary,
and it did not have promotion potential.
3The CO was the EEO Officer at the Central Office, however, she delegated
her duty to the EEO Specialist at the Central Office who was responsible
for coordinating the EEO Counselor Program.