John M. Dickinson, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, (United States Coast Guard), Agency.

Equal Employment Opportunity CommissionFeb 6, 2007
0120065150 (E.E.O.C. Feb. 6, 2007)

0120065150

02-06-2007

John M. Dickinson, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (United States Coast Guard), Agency.


John M. Dickinson,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

(United States Coast Guard),

Agency.

Appeal No. 01200651501

Agency No. HS 05-1110

DECISION

Complainant timely initiated an appeal from a final agency decision (FAD)

concerning his equal employment opportunity (EEO) complaint alleging

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(a).

During the relevant time complainant was employed as an Attorney-Advisor

(AA), GS-0905-14, at the agency's Office of Maritime and International

Law in Washington, D.C.

On October 8, 2004, complainant filed the instant formal complaint.

Therein, complainant claimed that he was discriminated against on the

basis of age (D.O.B. 04/07/46) when:

on February 27, 2004, he was not selected for the Attorney-Advisor

(AA) (Admiralty) position, advertised under Vacancy Announcement

Number CF-03-1286-HQAP.

At the conclusion of the investigation, complainant was informed of his

right to request a hearing before an EEOC Administrative Judge (AJ) or

alternatively, to receive a FAD by the agency. Complainant requested

that the agency issue a FAD.

In its FAD, dated August 11, 2006, without addressing the prima facie

analysis of complainant's disparate treatment claim based on age, the

agency found that management articulated legitimate, nondiscriminatory

reasons for complainant's non-selection which he failed to show were

a pretext for discrimination. Moreover, the agency concluded that

complainant had failed to prove that his qualifications for the subject

position were plainly superior than the selectee's qualifications.

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

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. See

McDonnell Douglas, 411 U.S. 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 actions. See 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.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

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. See U.S. Postal

Service Board 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).

The agency articulated legitimate, non-discriminatory reasons for

complainant's non-selection. Forty-eight candidates, including

complainant, applied for the position of Attorney-Advisor (AA)

(Admiralty). The record contains an affidavit from the Selecting Official

(SO). Therein, SO stated that he sought a highly qualified attorney with

"recent, hands-on experience representing the industry, with the widest

experience of leadership in commercial Admiralty law and marine safety."

SO stated that after receiving the list of the candidates from Human

Resources, he established a three-member panel, including himself.

SO stated that he then met with the other two panelists, and it was

determined that the panel would review the candidates' application

packages to ensure they properly met the Knowledge, Skills and Abilities

(KSAs) and requirements of the vacancy announcement. SO stated that

the panel also agreed that "on completing that step, the applicants

would be ranked as meeting or not meeting the basic requirements,

and which appeared to have the best qualifications for interviewing."

SO stated that the panel met again and discussed "which were their top

rated applicant packages to the requirements and decide on how many of

the best rated applicants would be interviewed." SO stated that during

the meeting, the panel selected seven candidates, including complainant,

to be interviewed for the subject position.

SO stated that the candidates were asked the same set of questions during

the interview. Following the interviews, the panel met and "it was agreed

that a second round of interviews was needed as the top applicants had

specific areas of superior experience and it was felt that more in-depth

questions could assist the panel in understanding their capabilities

better." SO stated that the panel then made a determination to ask

three out of the seven candidates to return for a second interview.

SO stated that complainant was not one of the three candidates because

the panel felt that he "did not have the best experience for the job

from the other applicants asked back for the second round of interviews."

SO stated that he chose the selectee for the subject position because he

was the best qualified candidate. SO further stated that the selectee's

background "brought a myriad of other recent experience and capabilities

in Admiralty Law, marine safety, quality processes that surpassed all

other candidates." SO stated that the selectee displayed a "proactive

nature and prominent capability to work alone without supervision in

representing the Coast Guard as he had done for private maritime firms

he had advised as counsel while practicing law in New York with one of

the most prestigious admiralty law firms in the U.S." SO stated that the

selectee had extensive experience "handling numerous investigations and

prosecutions involving major maritime incidents, casualties, contracts

and mariner cases on a hands-on-basis." SO stated that SO's background

as a Coast Guard reserve officer, a marine inspector and investigator

"gave him an even greater level of understanding of the agencies field

responsibilities in national and international law and regulation."

SO stated that complainant was not selected for the subject position

because he did not have the wealth of experience and knowledge in

admiralty law as other candidates had. SO stated that complainant's

age was not a factor in his determination to select the selectee for

the subject position.

The record contains an affidavit from one of the other two panelists (P1).

Therein, P1 stated that the selectee was the most qualified candidate for

the subject position based on his background, experience and leadership.

P1 stated that the selectee had prior Coast Guard experience "in the area

deemed most critical to the position (the Coast Guard's merchant marine

program), he had legal experience in a major law firm in New York City,

and evidenced leadership qualities during the interview that I thought

essential for the position." P1 stated that the area he felt that

selectee "clearly outpaced [complainant] was in the area of leadership

and group dynamics." Specifically, P1 stated that complainant "is an

extremely quiet person and I did not feel that he would inspire a team

effort as much as [the selectee]." P1 further stated that he felt that

complainant exhibits better skills at individual research.

The record contains an affidavit from the other panelist (P2). Therein,

P2 stated that the selectee was selected based on recent attorney

experience, excellent writing skills "and most importantly to me - an

energetic and aggressive nature." P2 stated that complainant met the

required criteria for the subject position "except that his experience

in practicing law was dated (1989-1993)." P2 stated that complainant

had a quiet personality while other candidates "just came on stronger."

P2 stated that complainant's age was not a factor in his non-selection.

Furthermore, P2 stated "there is no guarantee that a younger person wills

stick around and/or do a better job - experience and attitude is what's

important."

Complainant has not shown that the agency's articulated reasons, as

discussed above, were a pretext for discrimination.

Accordingly, the agency's final decision finding no discrimination is

AFFIRMED.

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

February 6, 2007

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

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0120065150

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120065150

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0120065150