01A12783
07-10-2002
Roger B. Marcum, Complainant, v. Donald L. Evans, Secretary, Department of Commerce (Bureau of Census) Agency.
Roger B. Marcum v. Department of Commerce
01A12783
July 10, 2002
.
Roger B. Marcum,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce
(Bureau of Census)
Agency.
Appeal No. 01A12783
Agency No. 99-63-00886D
DECISION
Roger B. Marcum (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 an
applicant for a management position at the agency's Champaign-Urbana,
Illinois Local Census Office facility. Complainant sought EEO counseling
and subsequently filed a formal complaint on October 4, 1999, alleging
that he was discriminated against on the basis of age (68-69 at the
relevant time) when the agency failed to consider him for a management
position.
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 first concluded that complainant failed to
establish a prima facie case of age discrimination. In so finding,
the agency noted that complainant acknowledged that he could not name
any other person who was treated more favorably than he. The agency also
stated, however, that the selectee for the Office Manager position at the
Champaign-Urbana Local Census Office was approximately 14 years younger
than complainant and therefore assumed that although complainant did
not argue he was treated less favorably than the substantially younger
individuals, he nonetheless established a prima facie case.
The agency went on to find, however, that management officials articulated
a legitimate non-discriminatory reason for not selecting complainant for a
management position. The former Census Recruiter for the Chicago Regional
Census Center (FC) stated that even if complainant took the agency's
supervisory test in July or August 1998 and passed, as complainant
alleged, he would not have been qualified for the Local Census Office
Manager position because to be considered for that position, applicants
had to participate in the supervisory testing program that was launched
in March/April 1999. Anyone who took the test prior to that time, had to
submit a new application package once the new program was operational.
FC noted that complainant was informed of this requirement and took the
test on June 10, 1999, receiving a passing score. FC noted, however,
that the certification list containing the names of people who passed
the test and were qualified for management positions was supplemented
on a continuous basis. Complainant's name was not yet added to this
list when the Champaign-Urbana Local Census Office Manager position was
filled on June 15, 1999, just five days after complainant passed the
qualifying test.
The agency concluded that although complainant may have established that
his application was handled with incompetence, he did not establish by a
preponderance of the evidence that he was subjected to age discrimination.
On appeal, complainant argues that he did, in fact, take the appropriate
qualifying examination in August 1998 and that FC must have misplaced his
application. He notes that �this could have been done on purpose.� He
also argues that he was told that by taking the June 10, 1999 examination,
he would be considered for management positions. He concludes that he
was either the object of discrimination or gross incompetence.
After a careful review of the record, the Commission finds that even
assuming complainant established a prima facie case of age discrimination,
he failed to present evidence that, more likely than not, the agency's
articulated reasons for its action were a pretext for discrimination.
In reaching this conclusion, we note that FC testified that even if
complainant did take and pass the supervisor's examination in August 1998
and it was subsequently lost by the agency, the examination would not have
qualified him for the selection made in June 1999 because a more recent
examination was required. Moreover, FC noted that complainant's name
was not yet on the certification list when the June 15, 1999 selection
was made, as his application had not yet been processed. Complainant
failed to provide any evidence to suggest that this explanation was a
pretext for discrimination. Indeed, complainant himself acknowledges
that his application may not have been considered due to incompetence,
rather than 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
July 10, 2002
Date