01A10046
04-11-2002
John J. Gleason, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
John J. Gleason v. Department of Agriculture
01A10046
April 11, 2002
.
John J. Gleason,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A10046
Agency No. 980773
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. Complainant alleged that he was discriminated
against on the basis of his age (date of birth: February 27, 1948) when:
(1) beginning October 1995, following the consolidation of various
agency level appeal functions into a single National Appeals Division
reporting to the Secretary of Agriculture, and the appointment of the
new Director, his position was denigrated and his responsibilities
progressively declined; and,
he was not afforded the opportunity to compete for, or otherwise be
considered for, the positions of Assistant Director for Administration,
in November 1997, and Supervisory Review Officer, in March 1998.
The record reveals that during the relevant time, complainant was employed
as a GS-343-14 Quality Control Officer (Program Analyst) at the agency's
Planning, Training, and Quality Control Area of the National Appeals
Division (NAD) in Alexandria, Virginia. In approximately October 1994,
the National Appeals Division was established by legislation, and as a
result, the National Appeals Staff and similar organizations from other
USDA components were merged into one single agency. Subsequently,
in October 1995, the position of Director of NAD, was filled,
resulting in another reorganization which was implemented in May 1996.
After complainant's job duties changed, and after he was not given the
opportunity to compete for two positions that he desired, complainant
sought EEO counseling and subsequently filed a formal complaint on
June 24, 1998. 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.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of discrimination based on age. Despite the assertion of
complainant's second-line supervisor (�the Director� or �S2") to the
contrary, the FAD concluded that complainant's responsibilities have,
in fact, been diminished to the detriment of his career. The FAD
also found that placement in either of the positions cited, would have
furthered complainant's career. Additionally, the FAD conceded that the
Director made derogatory statements related to age (specifically, that
he had a preference for younger employees), and that this constitutes
sufficient circumstantial evidence on which to base an inference of
age discrimination. However, the FAD further found that the Director
merely intended to say that there was a need to replace older employees
as they retire. Ultimately, the FAD concluded that age was not the
determinative factor in the challenged actions, and that complainant
did not establish pretext.
Complainant makes no new arguments on appeal. 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 or she 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 or she applied
for and was otherwise qualified for the position; that despite his or her
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
(Sept. 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)).
This established 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. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming, arguendo, that complainant has established his prima facie case
of age discrimination, the Commission turns to the agency to articulate
legitimate, nondiscriminatory reasons for its actions. We find that the
agency articulated the following legitimate, nondiscriminatory reasons:
Reduction in Duties: Complainant's duties were incrementally diminished
because 1) the reorganization resulted in fewer GS-14 positions, and, 2)
concurrent with the establishment of the agency, there was an emphasis
on reducing the ratio of supervisory to nonsupervisory employees.
Nonconsideration forAssistant Director for Administration position:
The selection of a younger employee occurred as a result of a swap
of positions between two employees. The impetus for the swap was
the disruptive personality of the incumbent Assistant to the Director
(IA). Specifically, IA had a �strong personality� which had �caused
friction.� See Report of Investigation (ROI), Affidavit of S2, at p. 6.
Additionally, S2 stated that there had been several complaints about IA,
and the selectee had better people skills. Id. S2 added that complainant
had not expressed interest in the position. Id.
Nonconsideration for Supervisory Review Officer position: S2 stated that
he chose the selectee because she was the most qualified for the position,
and noted that complainant did not express interest in the position.
We now turn to the complainant to establish that the agency's reasons
are pretext for discrimination. In an attempt to establish pretext,
complainant argues that a �hit list� was created, and that this suggests
that agency officials had an animus toward its older employees. See ROI,
Exhibit F2, Complainant's Addendum to Affidavit, p. 2. However, several
witnesses have explained that this document was a �Staffing Replacement
Strategy� which was merely an attempt to project, over the next five
years, the reasonable retirement plans of employees. See ROI, Exhibit F5,
at p. 4, and Exhibit F3, p. 5. The Commission is not persuaded that this
document supports complainant's contention that the agency's articulated
reason is pretextual.
Complainant also argues that S2 told people that he was used to working
with �young attorneys,� and that he likes young people because they are
�resilient and receptive to change.� Complainant explains the difficulty
of documenting such comments due to the �climate of fear� in NAD under
S2's administration. See Report of Investigation (ROI), Affidavit of
Complainant, at p. 6. Even assuming that S2 did make inappropriate
statements which indicate that he has a bias against older employees,
complainant has not demonstrated by a preponderance of the evidence,
that his age played a role in S2's decisionmaking process regarding the
challenged actions.
As to the nonconsideration for the Assistant Director for Administration
position, complainant points out that the position was not advertised,
and that is why he did not apply or express interest in it. However,
complainant has not established that the position was intentionally
not advertised in order to discriminate against him based on his age.
Complainant also argues that it makes no sense for a person with poor
interpersonal skills to be moved into a supervisory position. Although
we agree that the assignment of someone with poor interpersonal skills
to a supervisory position may be problematic, the ADEA prohibits only
discrimination, and not poor judgment.
Complainant argues that the Supervisory Review Officer position was filled
by lateral reassignment with a person who did not want the position.
Complainant argues that age discrimination clearly motivated this decision
since the selectee was placed in this difficult position in order to
pressure her into retirement. However, the selectee's own statement
denying that she felt pressured into retirement, directly contradicts
this argument.
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. Nor are we
persuaded that, but for complainant's age, the agency would not have
incrementally reduced his duties. In reaching this conclusion, we
note that any age-related remarks attributable to S2 were at best stray
remarks which had no bearing on complainant's position or job duties,
or on his nonconsideration for the two positions in question. 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.
Therefore, based on a complete examination of the evidence of 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
April 11, 2002
__________________
Date