01984189
08-06-1999
Millard Graham, Appellant, v. Daniel L. Glickman, Secretary, Department of Agriculture, Agency.
Millard Graham v. Department of Agriculture
01984189
August 6, 1999
Millard Graham, )
Appellant, ) Appeal No. 01984189
v. ) Agency No. 950623
Daniel L. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
DECISION
Appellant timely initiated an appeal to this Commission from a final
agency decision ("FAD") concerning his complaint of discrimination in
violation of Title VII of the Civil Rights Act of 1964, 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. Section 621 et seq. The appeal is
accepted pursuant to the provisions of EEOC Order No. 960.001. In his
complaint, appellant alleged that he was discriminated against based
on his age (date of birth: October 29, 1926) and reprisal for prior
EEO activity when he was not selected for the position of Supervisory
Biologist (Wildlife), District Supervisor, GS-9/11 (the "Position").
In March 1995, appellant, a retired Biological (Wildlife) Technician,
GS-7, applied for the Position and was interviewed but not selected.
The selectee was under age 40 and employed by the agency as an Assistant
District Supervisor, GS-9. Appellant timely sought EEO counseling,
and his instant complaint was accepted and investigated by the agency.
After appellant failed to request a hearing before an EEOC Administrative
Judge, the agency issued its instant FAD, finding no discrimination.
The record reflects that while appellant and two other candidates were
found qualified for the Position, one of the other candidates withdrew
his application. Accordingly, only appellant and the ultimate selectee
were interviewed (telephonically) by the selecting official ("SO").
The SO had been the selecting official in a prior selection decision
which appellant challenged as discriminatory and was, therefore,
aware of appellant's prior EEO activity. The SO averred that he chose
the selectee because he had more relevant experience and more agency
supervisory experience than appellant. In addition, because the duties
of the Position included the preparation of numerous reports, the SO
gave great weight to the quality of the written applications. The SO
averred that he found the selectee's application to be well organized,
with narrative which addressed the knowledge, skills and abilities ("KSA")
factors required. However, the SO averred that he found appellant's
application to be poorly organized, with obvious errors and a missing
section, and narrative which did not adequately address the KSA factors.
Accordingly, the SO stated that he cross-referenced various portions of
the application to determine whether the KSA factors had been met, which
was something that he normally would not do for a candidate with such a
poor application, particularly given that the only other candidate was a
GS-9 with agency supervisory experience. However, because of appellant's
prior complaint challenging the SO's prior selection decision, the SO
wished to ensure that appellant was fully considered.
Although conceding that he was unaware of the selectee's qualifications,
appellant contended that he should have been found to be more qualified
because he had more years of service with the agency and, thus, more
experience. Appellant noted that while he had retired at the GS-7 level,
he had been found qualified for positions at the GS-13 level, whereas
this position was only at the GS-9/11 level. Appellant asserted that the
agency had not selected him for over 20 positions because of his prior EEO
complaints and because of his age, with younger candidates being selected
in each instance. In its FAD, the agency found that appellant failed to
establish that the SO's legitimate, non-discriminatory explanation for
his selection decision was a pretext for discrimination based on age
or reprisal.
Appellant did not submit comments on appeal. In its comments, the agency
contends that its FAD properly found no discrimination or reprisal.
As this case alleges employment discrimination based on age and reprisal,
it is the burden of the complainant initially to establish that there is
some substance to his or her allegation. In order to accomplish this,
the complainant must establish a prima facie case of discrimination.
McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). This means
that appellant must present a body of evidence such that, were it not
rebutted, the trier of fact could conclude that unlawful discrimination
did occur. The burden then shifts to the agency to articulate a
legitimate, non-discriminatory explanation for its action. Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard,
the agency need only produce evidence sufficient "to allow the trier of
fact rationally to conclude" that the agency's action was not based on
unlawful discrimination. Id. at 257. Once the agency has articulated
such a reason, the question becomes whether the proffered explanation
was the true reason for the agency's action, or mere pretext. The
burden then shifts back to appellant to show, by a preponderance of the
evidence, that the agency was more likely motivated by discrimination,
or that the agency's proffered explanation is unworthy of credence.
Burdine, 450 U.S. at 256. While the burden of production may shift,
the ultimate burden of persuasion remains on appellant at all times. See
Board of Trustees of Keene College v. Sweeney, 439 U.S. 24, 25 n. 2 1978).
This analysis, developed in the context of Title VII proceedings, applies
to cases alleging reprisal (see Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd 545 F.2d
222 (1st Cir. 1976)) and also applies to cases arising under the ADEA
(see Jackson v. Sears, Roebuck & Co., 648 F.2d 225 (5th Cir. 1981)).
Applying the analytical framework set forth above, the Commission
finds that appellant established a prima facie case of age and reprisal
discrimination, but failed to establish that the agency's articulated
reasons for his nonselection were a pretext to mask discrimination.
While appellant points to his extensive experience with the agency,
the record supports the SO's contention that the selectee submitted a
superior application. In addition, the selectee had agency supervisory
experience, experience at a higher grade, and more relevant experience
than appellant.
Accordingly, after a careful review of the entire record, including
arguments and evidence not specifically addressed in this decision,
it is the decision of the Commission to AFFIRM the FAD in this matter.
STATEMENT OF RIGHTS-ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
August 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations