01A14231
10-24-2002
Kenneth G. Matthews, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Kenneth G. Matthews v. Department of the Navy
01A14231
October 24, 2002
.
Kenneth G. Matthews,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A14231
Agency No. DON-00-65923-013
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 Computer Specialist, GS-11 at the agency's Naval Aviation
Depot, located in Cherry Point, North Carolina. Complainant sought
EEO counseling and subsequently filed a formal complaint on March 17,
2000, alleging that he was discriminated against on the basis of age
(D.O.B. February 1, 1932) when he was not selected for the position of
Computer Specialist (System Analyst), GS-334-12, at the Cherry Point
facility.
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.
The record reveals the following: On January 5, 2000, the Human Resources
Office (HRO) issued a vacancy announcement for the position at issue.
Complainant was the only qualified applicant. HRO evaluated him and
rated him �best-qualified.� As a result, HRO certified complainant to the
Selecting Official (SO). The SO rated complainant and complainant scored
9 points out of a possible 16 points. The SO returned the certificate
unused, and noted that she wanted to recruit at a lower entrance level.
On March 9, 2000, complainant was notified that he was not selected.
In its FAD, the agency assumed, arguendo, that complainant established
a prima facie case and proceeded to analyze the agency's legitimate,
non-discriminatory reason, as well as complainant's evidence that such
reason was pretext for discrimination. The FAD found that the agency
articulated a legitimate, non-discriminatory reason for not selecting
the complainant; namely, the SO wanted someone who could perform all
but the most difficult functions of the position with minimal training.
Specifically, the SO provided that she wanted someone with experience
in developing software, advanced computer programming, writing systems
specification, design documents, requirement documents, support documents,
and test and implementation plans. Additionally, the SO consulted
with the Automatic Storage, Kitting and Retrieval System Program
Manager about complainant and decided that complainant's application
failed to demonstrate that he could perform the duties of the position
without extensive training. The FAD found that complainant failed to
establish with probative evidence that management's reason was pretext
for discrimination. On appeal, complainant contends that the agency
erred in its determination and requests that the FAD be reversed.
The agency requests that we affirm its FAD.
As a preliminary matter, we note that the decision on an appeal from
a FAD issued without a hearing, pursuant to 29 C.F.R. � 1614.100(b),
shall be based on a de novo review. 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 ADEA, age)
actually motivated the employer's decision.� Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 141 (2000). Complainant's age
"must have actually played a role in the employer's decision-making
process and had a determinative influence on the outcome." Id.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Ultimately, 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). Notwithstanding complainant's arguments to the contrary on
appeal, absent probative evidence that age actually played a role in
the agency's decision not to select complainant, the Commission finds
that complainant failed to establish that the agency's reason for not
selecting him was pretext for discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
October 24, 2002
__________________
Date