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