01990687
06-08-2000
Harold LaFountain, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, (Grain Inspection Packers and Stockyards Administration), Agency.
Harold LaFountain v. Department of Agriculture
01990687
June 8, 2000
Harold LaFountain, )
Complainant, )
) Appeal No. 01990687
v. ) Agency No. 960417
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
(Grain Inspection Packers and Stockyards )
Administration), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (American Indian) and age (54), 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 he was discriminated
against when he was not selected for one of four positions of Supervisory
Agricultural Commodity Grader (Grain; Area Manager)(SACG). The appeal is
accepted 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.
The record reveals that during the relevant time, complainant was employed
as a GS-1980-11 Supervisory Agricultural Commodity Grader (Grain), at
the agency's Grain Inspection Packers and Stockyards Administration, in
Destrehan, Louisiana. Complainant alleged that on October 6, 1995, he
applied for one of the four vacant SACG/Area Manager positions at issue
and was interviewed and placed on the Promotion/Selection Certificate,
but was not selected. A review of the record establishes that after the
issuance of the vacancy announcement for four SACG/Area Manager positions,
two GS-12 SACG/Assistant Field Managers (E1:White; age 58; E2: White;
age 50) at agency regional offices were reassigned to fill two positions.
On January 30, 1996, two GS-1980-11 SACGs (both Black; ages 43 and 45)
were competitively selected for the two remaining positions. Believing he
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint on April 17, 1996. At the conclusion
of the investigation, complainant requested that the agency issue a FAD.
The FAD found that complainant established a prima facie case of race and
age discrimination regarding his nonselection for an SACG/Area Manager
position as he is a member of protected groups based on his race and age,
he applied for and was qualified for the position at issue but was not
selected in favor of selectees who were not members of his protected
groups. However, the FAD found that the agency articulated legitimate,
nondiscriminatory reasons for the nonselection of complainant for
any of the SACG/Area Manager positions. In so finding, the FAD noted
the testimony of the Selecting Official (SO; Black; age 45) that: the
Promotion/Selection certificate contained twenty names when he received
it; a panel of four managers recommended the four top ranking candidates
based on employment applications and responses to KSAs; and complainant
was not included on the recommended list. The SO stated that the
selectees were chosen as they had completed the Management Development
Program (MDP), had served on review teams and were detailed as acting
field review team managers. The SO further stated that complainant's
qualifications were not as impressive as the selectees. Specifically,
complainant had not completed the MDP or served as an acting field
office manager, and the selectees had higher appraisal ratings than
did complainant.
Regarding the reassignments, the FAD found as legitimate and
nondiscriminatory the SO's testimony that the two employees reassigned to
SACG/Area Manager positions had been GS-12 SACG/Assistant Field Managers
at agency regional offices, and when four regional offices were merged
into the New Orleans office, the GS-12 Assistant Field Manager positions
were eliminated and the selectees were reassigned to fill two of the
vacant GS-12 SACG/Area Manager positions pursuant to the reorganization.
The SO stated that while four SACG/Area Manager positions were advertised,
due to the reassignments, only two candidates were competitively selected.
The FAD further found that complainant failed to establish that any of
the agency's articulated reasons for his nonselection were a pretext
for discrimination. Complainant makes no arguments on appeal, while
the agency requests that we affirm its FAD.
After a careful review of the record based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the Commission agrees with the
FAD's finding that complainant established a prima facie case of race
and age discrimination regarding his competitive nonselection. However,
regarding the reassignment of E2, the FAD failed to consider whether
complainant established a prima facie case of age discrimination under
the standard set forth by the Supreme Court in O'Connor v. Consolidated
Coin Caterers Corp., 517 U.S. 878 (1996)(stating that an inference of
discrimination cannot be drawn when the selectee is "insignificantly
younger" than the complainant). EEOC Enforcement Guidance on O'Connor
v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002 (September 18,
1996). Nevertheless, assuming, arguendo, that complainant established
a prima facie case of age discrimination regarding E2's reassignment,
we agree with the FAD's finding that the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant for a SACG/Area
Manager position. See Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979).
In so finding, we note the credible testimony of the SO that two
SACG/Area Manager positions were filled internally by reassigning two
SACG/Assistant Field Managers pursuant to an agency reorganization,
while the two selectees were competitively promoted over complainant
due to factors such as their superior appraisal ratings, experience as
SACG Assistant Field Managers and completion of the MDP, as well as the
selectees' application addendum outlining their specific work experience,
which complainant declined to submit with his application. Finally,
the Commission finds that complainant has failed to demonstrate that
it was more likely than not that the agency's articulated reasons were
a pretext for race or age discrimination. Therefore, after a careful
review of the record, including arguments and evidence not specifically
addressed in this decision, we affirm the FAD.
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 8, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.