Milton Aponte, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionSep 23, 2002
01A13252 (E.E.O.C. Sep. 23, 2002)

01A13252

09-23-2002

Milton Aponte, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.


Milton Aponte v. Department of Justice

01A13252

September 23, 2002

.

Milton Aponte,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,

Agency.

Appeal No. 01A13252

Agency No. I-97-0027

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. 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 GS-14, General Attorney, at the agency's Miami District Counsel

Office facility in Florida. Complainant contends that the District

Counsel (S1: Mexican American, 42 years old) has displayed discriminatory

animus towards older employees as well as Hispanic employees of Puerto

Rican descent. Complainant notes that he has applied for several deputy

district counsel positions and has never been selected. The record

reflects that there are seven deputy district counsel positions, and of

the seven current deputies, only one is Hispanic.

Complainant contends that S1 preselected and groomed the attorneys that

he wanted to fill the deputy district counsel positions whenever there

was a vacancy. Complainant also contends that although S1 did not make

the final selection, his recommendation carried tremendous weight in the

selection process. Complainant notes that he has never been offered an

acting deputy district position which places him at a disadvantage for

a deputy district counsel position.

Complainant further contends that he was disadvantaged when he was not

rated �Outstanding.� According to complainant, a rating other than

�Outstanding� was S1's method of disqualifying employees that he did not

preselect for deputy district counsel positions. The record reflects

that complainant received ratings of �Excellent� which he attributed to

the negative influence of S1.

Complainant sought EEO counseling on October 25, 1996. After informal

efforts to resolve the matter through counseling proved unsuccessful,

complainant filed a formal complaint on January 16, 1997. Complainant

alleged that he was discriminated against on the bases of national origin

(Puerto Rican) and age (53 years old) when he was not selected for

a deputy district counsel position in 1996 despite his experience,

knowledge and skills. 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 dated March 8, 2001, the agency concluded that complainant

established a prima facie case of national origin and age discrimination.

Specifically, complainant applied, and was qualified for the

deputy district counsel position. He suffered an adverse employment

action when he was not selected. One of the two selectees (S1: White

female, approximately 34 years old), was not a member of his protected

classes. The FAD also found that the agency articulated legitimate,

nondiscriminatory reasons for not selecting complainant. In particular,

S1 explained that he did not recommend complainant for the position

because complainant's writing skills and demonstrated judgment made him

a less desirable choice in comparison with the two selectees.

On appeal, complainant contends that his performance appraisals

demonstrate that S1's reasons for not selecting him were a pretext for

discriminatory animus. Complainant also argues that, in comparison

to the selectees, he is an exceedingly better qualified attorney.

The agency requests that we affirm its FAD.

In cases where the issue is non-selection, complainant may establish

a prima facie case of national origin and/or age discrimination by

showing: (1) he is a member of a protected class; (2) he was qualified

for the position; (3) he was not selected for the position; and (4)

he was accorded less favorable treatment from that given to persons

otherwise similarly situated. Williams v. Department of Education,

EEOC Request No. 05970561 (August 6, 1998). Complainant may also set

forth evidence of acts from which, if otherwise unexplained, an inference

of discrimination can be drawn. Furnco Construction Corp. v. Waters,

438 U.S. 567, 576 (1978).

Applying the standards set forth in McDonnell Douglas, 411 U.S. 792 (1973)

and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a showing

that age was a determinative factor, in the sense that "but for" age,

complainant would not have been subject to the adverse action at issue),

the Commission agrees with the agency that complainant established a prima

facie case of age and national origin discrimination. In particular,

the Commission finds that complainant, by virtue of his age and national

origin was a member of a protected class. The record also reflects

that complainant applied, and was qualified for, the deputy district

counsel position. Lastly, the record evidence establishes that one of

the selectees was a White female in her mid-30s.

Because complainant has established a prima facie case of national origin

and age discrimination the burden now shifts to the agency to articulate

legitimate, nondiscriminatory reasons for its actions. In the instant

case, the agency asserts that complainant was not the best-qualified

candidate for the position. In comparison with the selectees, S1 stated

that complainant's writing skills, among other things, made him less

desirable. The record reflects that complainant's immediate supervisor

(S2: national origin not specified, over 40 years old) rated complainant

�Excellent� and believed that, although he was a good attorney, he had not

attained a level of accomplishment that warranted a management position.

The record also establishes that, even though S1 recommended employees

for deputy district counsel positions, the agency's General Counsel (S3)

made the final determination. In fact, not every employee recommended by

S1 was selected by S3. Under these circumstances, the Commission finds

that the agency articulated a legitimate, nondiscriminatory reason for

not selecting complainant.

The Commission notes that in nonselection cases, pretext may be found

where the complainant's qualifications are demonstrably superior to the

selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).

However, an employer has the discretion to choose among equally

qualified candidates. Canham v. Oberlin College, 666 F.2d 1057, 1061

(6th Cir. 1981). Additionally, an employer has even greater discretion

when filling management level or specialized positions. Wrenn v. Gould,

808 F.2d 493, 502 (6th Cir. 1987). The record evidence shows that of

the four deputy district counsels, half believed complainant possessed

the requisite managerial skills, and the other half did not. While it

is undisputed that complainant was qualified for the position, the record

established that the selectees were also qualified. Complainant fails to

present sufficient evidence that his qualifications were �demonstrably

superior� to the selectees. Consequently, the Commission finds that

complainant failed to present evidence that more likely than not, the

agency's articulated reasons for not selecting him were a pretext for

discriminatory animus.

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

September 23, 2002

__________________

Date