01a54149
11-18-2005
Spencer C. Watson, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Spencer C. Watson v. Department of Transportation
01A54149
November 18, 2005
.
Spencer C. Watson,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A54149
Agency No. 2-04-2033
DECISION
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 FAD.
PROCEDURAL BACKGROUND
The record reveals that complainant was employed as a Chemist, GS-1320-13,
in the Office of Hazardous Materials Technology located in Washington,
D.C. Complainant sought EEO counseling and subsequently filed a formal
complaint on December 29, 2003, alleging that he was discriminated
against on the basis of age (D.O.B. 5/7/43) when: (1) on February 26,
2002, he became aware of the proposal and its subsequent approval by the
Administrator to rectify the classification inequity within the Office
of Hazardous Materials Technology (DHM-20); (2) on August 28, 2002,
complainant became aware of the promotion of four employees to the GS-14
level who were the youngest technical professionals in the office; and
(3) management was unresponsive and delayed his promotion until November
2, 2003. In the agency's acknowledgment letter dated February 2, 2004,
the agency dismissed claims (1) and (2) as untimely, pursuant to 29
C.F.R. � 1614.107(a)(2). The record reveals that complainant initiated
EEO Counselor contact on October 15, 2003. Given that claims (1) and
(2) occurred on February 26, 2002 and August 28, 2002, both 45-days
beyond October 15, 2003, we agree with the agency's dismissal of
these claims for untimeliness. While we note that claims (1) and (2)
address the gravamen of this complaint, namely that younger employees
were being treated more favorably when they were promoted in 2002, we
cannot consider these claims because they are time barred. Therefore,
the only viable claim that we can address is the delay in complainant
receiving his promotion. The other claims are procedurally defective.
At the conclusion of the investigation of claim (3), the agency issued a
FAD on September 16, 2004, addressing the delay in complainant receiving
his promotion. The agency dismissed his complaint for failure to
state a claim and/or as moot, pursuant to 29 C.F.R. �� 1614.107(a)(1)
and 1614.107(a)(5) respectively. The Commission vacated this decision
and remanded the case to agency for further processing. See Watson
v. Department of Transportation, EEOC Appeal No. 01A50289 (Feb. 26,
2005). On March 23, 2005, the agency requested reconsideration of
the Commission's decision, however, we denied this request and ordered
reprocessing of the remanded claim on the merits of complainant's claim
of age discrimination. See Watson v. Department of Transportation,
EEOC Request Appeal No. 05A50695 (April 22, 2005). The agency issued
another FAD on May 5, 2005, and concluded that complainant failed to
prove a prima facie case of age discrimination and also found that
the agency had a legitimate, non-discriminatory reason for its action.
Complainant filed an appeal. Complainant's main contention on appeal
is that the agency denied him due process by promoting younger GS-13
technical professionals to the GS-14 level in August 2002, while older
more experienced and more educated GS-13 technical professionals were
denied any promotional opportunity until they demanded desk audits to
attain proper classifications at the GS-14 level, in November 2003.
The complainant also contends that the agency improperly processed
his complaint. The agency requests that we affirm its FAD.
STANDARD OF REVIEW
As an initial matter, we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a).
ANALYSIS AND FINDINGS
Age Discrimination Claim
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
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
failed to establish a prima facie case of age discrimination because
complainant failed to show that similarly situated younger employees
were promoted via desk audits in a shorter period of time. In the
record, complainant explained how six older technical professionals were
promoted via desk audit. He fails to show that younger similarly situated
employees were promoted via desk audit more quickly than he was, and there
is no other evidence in the record from which we can draw an inference of
a e discrimination in regard to the desk audit promotions. Given that
complainant failed to make a prima facie case of age discrimination,
we end our disparate treatment analysis here.
Dissatisfaction of Complaint Processing
Lastly, we will address complainant's allegations on appeal of improper
and biased handling of his EEO complaint by the EEO Investigator.
As an initial matter, we remind complainant that if he is dissatisfied
with the processing of his pending complaint, whether or not it alleges
prohibited discrimination as a basis for dissatisfaction, he should
be referred to the agency official responsible for the quality of
complaint processing. See EEOC Management Directive 110, Ch. 5 � IV(d)
(November 11, 1999). Furthermore, if the complainant has raised his
concerns with the appropriate agency official and nothing was done to
resolve the concerns, the complainant may present those concerns to the
EEOC at the following stages of processing:
1. Where the complainant has requested a hearing, to the EEOC
Administrative Judge when the complaint is under the jurisdiction
of the Administrative Judge; or
2. Where the complainant has not requested a hearing, to the EEOC Office
of Federal Operations (OFO) on appeal.
Complainant specifically alleged that the EEO Investigator did not
conduct a fair and complete investigation. For example, complainant
maintains that the EEO Investigator did not interview all of complainant's
witnesses. Based on representations in the record, we conclude that these
witnesses would have provided testimony in support of claims (1) and (2),
which have been procedurally dismissed for untimeliness. Therefore,
these witnesses' testimony would have no bearing on the issue at hand.
We also find the EEO Investigator's actions were fair and unbiased and
that the record was adequately developed as it pertains to claim (3).
With regard to complainant's contention that he was denied a hearing,
the record reflects that he requested a FAD in lieu of a hearing.
In conclusion, we find that complainant has not presented sufficient
evidence to support a finding that his complaint was improperly
processed.
CONCLUSION
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
November 18, 2005
__________________
Date