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
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0120065150
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