01A21195
01-09-2003
James L. Puppe, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
James L. Puppe v. Department of Veterans Affairs
01A21195
January 9, 2003
.
James L. Puppe,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A21195
Agency No. 200K1614
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Rating Specialist, GS-12, at the agency's Regional Office in
Fargo, North Dakota. Complainant applied for the position of Decision
Review Officer (DRO), GS-13, under Vacancy Announcement No. 00-73.
Complainant was found qualified for the position and was referred
for consideration. A younger Rating Specialist (age 48) was selected
instead of complainant. Believing that this action was discriminatory,
complainant sought EEO counseling and subsequently filed a formal
complaint on February 22, 2001, alleging that he was discriminated
against on the basis of his age (D.O.B. 7/26/45) when, on December 6,
2000, he was not promoted to the DRO position.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency.
Complainant requested that the agency issue a final decision.
In its FAD, the agency initially concluded that complainant established
a prima facie case of age discrimination, in that the selectee was not in
the same �age band group� as complainant. The FAD further found that the
agency articulated a legitimate, nondiscriminatory reason for its action;
namely, although complainant had more experience, both candidates were
qualified. Additionally, the selectee had a better working relationship
with the rating specialists than complainant. The FAD referred to the
explanation of the Assistant Veterans Service Center Manager, who was the
Selecting Official (S1), that he was looking for someone who could reduce
the appeal ratio and appeal backlog. S1 also noted that five years ago
complainant had been asked to train two new rating specialists and he
refused. S1 also asserted that the service organizations complained about
complainant, and that complainant had behaved in ways which indicated that
he could not communicate well with service organizations. S1 expressed
several other complaints about complainant's work, for instance, that he
is not fair to all of the veterans. The FAD then addressed complainant's
arguments in his attempt to establish pretext. The FAD found that it was
unclear whether complainant had actually refused to train the specialists,
but that there was at least a �perception� that complainant did not want
to train the new specialists. The FAD addressed complainant's contention
that when S1 asked him how long he had been with the agency this indicated
that age was on S1's mind at the time of selection. The FAD found that
this was not necessarily the case, and after a consideration of several
other arguments raised by complainant, concluded that complainant failed
to establish, by a preponderance of the evidence, that the reasons given
by management were pretexts for age discrimination.
On appeal, complainant contends that there is a preponderance of evidence
that the reasons given by management for his denial or promotion are
false and not supported by the record. The agency requests that we
affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). Under the ADEA, it is "unlawful for an employer
... to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's age." 29 U.S.C. � 623(a)(1). When a complainant
alleges that he has been disparately treated by the employing agency
as a result of unlawful age discrimination, "liability depends on
whether the protected trait (under the ADEA, age) actually motivated
the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,
610 (1993)). "That is, [complainant's] age must have actually played a
role in the employer's decisionmaking process and had a determinative
influence on the outcome." Id.
In disparate treatment cases such as the instant appeal, where there
is an absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof is a three-step
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973);
see also Reeves, 530 U.S. at 142 (applying McDonnell Douglas analysis
to ADEA claim). Under this analytic framework, complainant must first
establish a prima facie case of unlawful age discrimination--that
complainant was a member of a protected class of individuals under
the ADEA; that he applied for and was otherwise qualified for the
position; that despite his qualifications complainant was rejected;
and that the agency subsequently selected someone for the position who
was substantially younger than complainant. Reeves, 530 U.S. at 142;
O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996);
McDonnell Douglas, 411 U.S. at 802. We note that it is not necessary
for complainant to rely strictly on comparative evidence in order to
establish an inference of discriminatory motivation necessary to support
a prima facie case. O'Connor, 517 U.S. at 312; EEOC Enforcement Guidance
on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002,
at n.4 (September 18, 1996). However, the ultimate burden of persuading
the trier of fact that the agency intentionally discriminated against
complainant remains at all times with complainant. Reeves, 530 U.S. at
143 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981)).
We will assume, arguendo, that complainant has established a prima facie
case of age discrimination. The burden thus shifts to the agency to
"produce evidence that [complainant] was rejected, or someone else was
preferred, for a legitimate, nondiscriminatory reason." Reeves, 530
U.S. at 142 (quoting Burdine, 450 U.S. at 254). This burden is one of
production, not persuasion, and involves no assessment of the credibility
of the agency's proffered reason. Id. If the agency meets this burden
of production, the presumption of intentional discrimination accorded by
complainant's prima facie case "drops out of the picture." Id. at 143.
However, "the trier of fact may still consider the evidence establishing
[complainant's] prima facie case 'and inferences properly drawn
therefrom ... on the issue of whether [the agency's] explanation
is pretextual."' Id. (quoting in part Burdine, 450 U.S. at 255)
(italics added)). Complainant must be afforded "the opportunity to
prove by a preponderance of the evidence that the legitimate reasons
offered by the [agency] were not its true reasons, but were a pretext
for discrimination.... [T]he [complainant] may attempt to establish
that he was the victim of intentional discrimination by showing that the
employer's proffered explanation is unworthy of credence." Id. (internal
quotation and citation omitted).
The agency met its burden by offering the aforementioned testimony
showing that although complainant and the selectee were both qualified,
the selectee had a better relationship with the other rating specialists,
had better communication skills and was more willing to provide training
than complainant. S1 also criticized aspects of complainant's work and
his relationship with others. While complainant has presented several
challenges to the agency's reasons for his nonselection, he has presented
insufficient evidence to support an inference that the selection process
was tainted with discriminatory animus against him based upon his age.
In reaching this conclusion, we note that asking complainant how long he
has been employed by the agency does not necessarily indicate that age
was a factor in the decisionmaking process. Furthermore, any age-related
remark attributable to S1 was at best a stray remark, and we find that
it had no bearing on complainant's nonselection for the position in
question.<1> See Wyatt v. Small Business Administration, EEOC Appeal
No. 01973097 (June 22, 1999); Gatlin v. Department of Agriculture,
EEOC Appeal No. 01942199 (January 23, 1995); Cafaro v. Department of
the Treasury, EEOC Request No. 05920480 (August 27, 1992) at n. 3.
The agency has broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997).
Therefore, based on a complete examination of the evidence in the record,
we conclude that complainant has not presented sufficient evidence to
prove that the agency's articulated reasons for his nonselection were
pretextual, or that his age actually played a role in the agency's
decisionmaking process and had a determinative influence on the
outcome. See Reeves, 530 U.S. at 141. Accordingly, as complainant
has failed to carry his burden of proving that the agency unlawfully
discriminated against him on account of his age, we AFFIRM the agency's
finding of no discrimination.
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
January 9, 2003
__________________
Date
1 Complainant alleges that at a birthday party, S1 made the comment �You
are an old fart.�