01A42471_r
06-23-2004
Michael J. McComb, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Michael J. McComb v. Department of the Interior
01A42471
June 23, 2004
.
Michael J. McComb,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A42471
Agency No. WBR-03-026
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and 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.
The record reveals that during the relevant time, complainant was an
applicant for employment at the agency's Lower Colorado Regional Office,
in Boulder City, Nevada. On January 27, 2003, complainant sought EEO
counseling and subsequently filed a formal complaint on May 12, 2003,
alleging that he was discriminated against on the bases of sex (male)
and age (D.O.B. 4/21/50) when:
(1) on August 23, 2000, he was not selected for the position of
Administrative Specialist, GS-301-5/7/9/11, Vacancy Announcement
BOR-LC-00-56;
(2) on December 31, 2002, he was not selected for the position of
Accounting Technician, GS-525-7, Vacancy Announcement BOR-LC-02-101; and
(3) on January 8, 2003, he was not selected for the position of
Management and Program Analyst, GS-343-7/9, Vacancy Announcement
BOR-LC-02-102.
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 dismissed claim (1) on the grounds of untimely EEO
Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
determined that complainant's January 27, 2003 contact, regarding the
non-selection that occurred on August 23, 2000, was beyond the 45-day
limitation period. The agency determined that complainant, a federal
employee, was aware of the 45-day limitation period.<1> The agency
further determined that complainant's untimely claim (claim (1)) is not
a continuing violation because it is not tied to either of his timely
claims (claims (2) and (3)) because it involved different supervisors
and selection criteria.
Further, with respect to claims (1) - (3), the agency concluded that
complainant established a prima facie case of sex and age discrimination
because the selectees, not in complainant's protected classes, were
selected for the three subject positions. The agency further concluded,
however, that management articulated a legitimate, non-discriminatory
reasons for its non-selections of complainant. The agency found that
complainant did not establish that more likely than not, the management's
articulated reasons were a pretext to mask unlawful discrimination.
Claim (1)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that the alleged discrimination event occurred
on August 23, 2000, but that complainant did not initiate contact
with an EEO Counselor until January 27, 2003, which was well beyond
the forty-five (45) day limitation period. In the EEO Counselor's
Report, complainant was asked to explain why he waited to contact the
EEO Counselor. Complainant indicated that he did not file a complaint
on the non-selection earlier because it was not until he applied for
several vacancies that he felt there was a pattern of discrimination
against him because of his age.
The Commission has found that since the limitation period for contacting
an EEO Counselor is triggered by the reasonable suspicion standard,
waiting until one has "supporting facts" or "proof" of discrimination
before initiating a complaint can result in untimely Counselor contact.
See Bracken v. United States Postal Service, EEOC Request No. 05900065
(March 29, 1990). The Commission finds that complainant had, or should
have had, a reasonable suspicion of unlawful employment discrimination
at the time of his non-selection in August 2000, and that he should
have contacted the EEO office within forty-five days. Complainant has
failed to provide sufficient justification for extending or tolling the
time limitation. Therefore, we find that the agency properly dismissed
claim (1) for untimely Counselor contact.
Because we are affirming the agency's dismissal of claim (1) for untimely
Counselor contact, we will not address the agency's disposal of this
claim on the merits.
Claims (2) and (3)
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case 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).
With respect to claim (2), we find that the agency articulated legitimate,
non-discriminatory reasons for its employment action, which we determine
were not persuasively rebutted by complainant. The record in this
case contains an affidavit from the Selecting Official (SO). Therein,
the SO stated that he received a list of ten qualified candidates for
the subject position from the Human Resources Office. The SO further
stated that he did not conduct interviews because he felt that the
applications were "fairly straightforward." The SO stated that he was
looking for someone who had Bureau of Reclamation accounting experience
and Interior Federal Financial System (FFS) accounting experience.
The SO further stated that the top three ranked candidates had FFS
experience while complainant was ranked with no FFS experience. The SO
further stated that he chose the selectee because of her extensive FFS
accounting experience; that she had performed the job being filled in
the absence of the GS-7 accounting technician; that she had acted in
the GS-7 accounting position, after the prior incumbent was promoted to
accountant; and had timekeeping experience. Furthermore, the SO stated
that age and sex had nothing to do with the ranking determination or
his decision to select the selectee for the subject position.
With respect to claim (3), we find that the agency articulated legitimate,
non-discriminatory reasons for its employment action, which we determine
were not persuasively rebutted by complainant. The record in this case
contains an affidavit from a different SO. Therein, the SO stated that
she received a Certificate of Eligibles listing nine referred candidates
for the subject position. The SO stated that after she selected four
candidates from the list based on their "breadth of experience," she set
up a panel comprised of herself and a Program Analyst, GS-12, to conduct
the interviews. The SO stated that complainant was not one of the four
candidates interviewed for the subject position. The SO stated that she
was looking for "someone with a greater breadth of experience, especially
related to personnel and budgeting functions." The SO stated that she
chose the selectee because of her "breadth of experience, particularly
in terms of personnel and financial budgeting experience made her
the candidate of choice." The SO stated that she found complainant's
work experience was not as broadly based as the other four candidates'
experience. The SO further stated that complainant's experience "was
focused on financial, accounting and auditing disciplines, and his
management analyst was not as recent, since it was from the mid-80s."
Furthermore, the SO denied that she discriminated against complainant
based on his age and sex.
Finally, we find that complainant has not demonstrated that the agency's
articulated reasons for the non-selections (claims (2) and (3)) were a
pretext for discrimination.
Accordingly, the agency's finding of no discrimination of claims (2) and
(3) regarding complainant's non-selection for the subject positions was
proper and 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
June 23, 2004
__________________
Date
1The record reveals that during the relevant period complainant was
employed as a Financial Analyst, GS-1160-11, at the Department of
Veterans Affairs Medical Center in Northampton, Massachusetts.