01A10441
04-18-2002
Thomas P. Bezelik, Complainant, v. Lt. Gen. Michael V. Hayden, Director, National Security Agency, Agency.
Thomas P. Bezelik v. National Security Agency
01A10441
April 18, 2002
.
Thomas P. Bezelik,
Complainant,
v.
Lt. Gen. Michael V. Hayden,
Director,
National Security Agency,
Agency.
Appeal No. 01A10441
Agency No. 99-029
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., and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that he was discriminated against on the bases of
age (date of birth: January 23, 1947 ), disability (degenerative disk
and rheumatory arthritis), and reprisal (filed prior EEO complaints),
when the Chief of Y29 did not support him for promotion to GGD-14 in the
first half of FY-99 and he was subsequently not promoted in December 1998.
The record reveals that during the relevant time, complainant was employed
as a Senior Engineering Specialist in the Fielded Systems Support Branch
(Y271) of the Field Support Division (Y27) in Ft. Meade, Maryland.
Complainant applied for the promotion at issue, and in December 1998,
was nonselected. Two younger employees (dates of birth: June 11,
1957, and June 19, 1960) were selected. Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on April 28, 1999. 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. Complainant requested that the agency issue a
final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of age discrimination. The FAD then concluded that the
agency articulated the following legitimate, nondiscriminatory reason
for the nonselection: complainant was not the most qualified person for
promotion to GG-14 in December 1998. Specifically, one comparator has a
B.S. and a B.A. and the other has a B.S. and a M.S., while complainant
has an A.A. Complainant was an engineering specialist at the time
of selection, while the comparators were both cryptologic engineers.
Additionally, while complainant had one special performance cash award
between 1993-1996, one of complainant's named comparators received four
such awards, and the other received five. The selectees were selected
according to the agency's promotion criteria, which placed great value on
job performance, and while complainant attended an abundance of training
courses, he did not transfer his training into on-the-job performance.
In addition, according to Deputy Chief Y29 (D1), complainant did not
have solid accomplishments and was not a team player. In contrast,
complainant's younger comparator had stellar performance. The FAD went
on to conclude that complainant failed to present any evidence to rebut
the agency's explanation, and therefore did not establish pretext.
The FAD also found that complainant failed to establish a prima facie
case of disability discrimination, because he did not establish that he
is disabled within the meaning of the Rehabilitation Act. It further
concluded that there is no evidence whatsoever to link complainant's
alleged disability with his non-promotion. The members of the Y, DDI,
and agency boards indicated that they were unaware of any disability
that complainant alleged to have. Additionally, the agency articulated
legitimate, nondiscriminatory reasons for the nonselection, which
complainant has not demonstrated to be pretextual.
The FAD additionally concluded that complainant failed to establish
a prima facie case of reprisal. Specifically, although complainant
filed prior EEO complaints, which is protected activity, and he was not
promoted, there is no evidence linking the two. Complainant's reprisal
claim is based on nothing more than speculation. In any event, the
FAD concluded that the agency articulated legitimate, nondiscriminatory
reasons for the nonselection, which complainant failed to demonstrate
as pretextual.
On appeal, complainant, through his attorney, restates arguments
previously made, and makes the following additional principal arguments:
There have been alleged illegalities by the agency concerning promotions
awarded on the basis of race and sex, and complainant has suffered from
similar illegalities based on age, disability and reprisal;
Complainant has provided sufficient evidence to establish that the
agency's act is motivated by a discriminatory animus toward complainant.
The EEO investigation is incomplete and biased because it lacks
objectivity and professional acumen.
The agency requests that we affirm its FAD.
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).
Under the ADEA, it is "unlawful for an employer ... to fail or refuse
to hire or to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's
age." 29 U.S.C. � 623(a)(1). When a complainant alleges that he or
she has been disparately treated by the employing agency as a result
of unlawful age discrimination, "liability depends on whether the
protected trait (under the ADEA, age) actually motivated the employer's
decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141
(2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).
"That is, [complainant's] age must have actually played a role in the
employer's decisionmaking process and had a determinative influence on
the outcome." Id.
In disparate treatment cases, where there is an absence of direct
evidence of discrimination, the allocation of burdens and order of
presentation of proof is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973); see also Reeves, 530
U.S. at 142 (applying McDonnell Douglas analysis to ADEA claim). Under
this analytic framework, complainant must first establish a prima
facie case of unlawful age discrimination. We note that it is not
necessary for complainant to rely strictly on comparative evidence in
order to establish an inference of discriminatory motivation necessary
to support a prima facie case. O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor
v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4
(Sept. 18, 1996). However, the ultimate burden of persuading the trier
of fact that the agency intentionally discriminated against complainant
remains at all times with complainant. Reeves, 530 U.S. at 143 (quoting
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Where the agency has articulated
a legitimate, nondiscriminatory reason for the challenged actions, the
factual inquiry can proceed directly to the third step of the McDonnell
Douglas analysis, the ultimate issue of whether complainant has shown by
a preponderance of the evidence that the agency's actions were motivated
by discrimination. U.S. Postal Service Bd. of Governors v. Aikens, 460
U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming, arguendo, that complainant established his prima facie case
of discrimination on the bases of age, disability and reprisal, the
Commission turns to the agency to articulate legitimate, nondiscriminatory
reasons for its actions. D1 stated that he and C1 initially discussed the
list of eligibles given to them by personnel, Y091. Then a zero-based
review of all of the GG-13's in the organization was conducted by
the Promotion Board (PB). See Record of Investigation (ROI), Exhibit
4-31. Complainant's application was reviewed by the PB. The PB scored
all of the candidates based on the following criteria: performance,
job experience, personal attributes, training and self-development,
and potential. Id. Job performance was weighted the most heavily. Id.
The PB then compiled a list for C1 of recommended promotees, and C1 made
the ultimate selection decision. See ROI, Exhibit 4, p. 2. The Board
did not rank complainant high for job performance and future potential
contributions at the GG14 level, and his name was not on the list of
recommended promotees. See ROI, Exhibit 7, p. 3. D1 additionally
explained that the selectees both had significantly more accomplishments
since their last promotions than complainant did. See ROI, Exhibit 4,
at p. 3. D1 also noted that, although complainant took an extremely
high number of agency training courses while he was in Y29, no more
than 10% weight can be given to training/self-development according to
the applicable guidelines. Id., at p. 5. All individuals involved in
the selection process for the position at issue denied that age was a
factor in the selection process. See ROI, Exhibits 4-31.
The burden returns to complainant to show that the agency's reasons were
pretext for discrimination. Complainant asserts, in his affidavit,
his belief that C1 does not support personnel over 40 or 50 years old
for promotion. He stated �[C1] doesn't support people who have age,
longevity, don't have much time until retirement. That's the key here.
If you don't have much time left, he will not nominate you unless you
have enough time to be able to put in for your 15.� Id., at p. 5-6.
Complainant states that, to his knowledge, management has never
supported anyone over the age of 40 or 50 for promotion to grade 14
who was not in a management position. Id., at p. 6. Additionally,
according to complainant's affidavit, he believes he was qualified
for the promotion. In regards to education and training, he feels
he was as, or more, qualified than the selectees. As to experience,
he notes that he had been a program manager on a number of programs,
worked on nine contracts totaling $80 million, and asked for a higher
dollar projects, but was never afforded the opportunity. See ROI,
Exhibit 1, p. 4-5. Complainant also notes that he received a number
of letters of appreciation from his customers and contractors. Id.,
at p. 5. Complainant also contends that the promotion write-ups for the
selectees were �padded� by C1, and this constituted fraud. Specifically,
complainant contends that C1 used the responsibilities and accomplishments
of subordinate division personnel to fluff up the promotion write-ups.
See Affidavit of complainant (December 18, 2000), p. 2. Complainant does
not substantiate this allegation of fraud. Complainant may be able to
establish pretext with a showing that his qualifications were plainly
superior to those of the selectee(s). Wasser v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d
1037, 1048 (10th Cir. 1981). However, complainant has not persuaded the
Commission that, his qualifications, when measured against the weighted
promotion criteria, were plainly superior to the qualifications of
the selectees. The Commission finds that complainant failed to show,
by a preponderance of the evidence, that the agency's articulated reasons
for its actions were a pretext for age-based discrimination.
With respect to complainant's argument expressing complainant's
dissatisfaction with the processing of his instant complaint, we note
that such dissatisfaction is not sufficient reason for us to vacate
the agency decision and remand his case for the issuance of a new
decision. In the Commission's Management Directive, it is stated that
if a complainant is dissatisfied with the processing of his complaint,
he must bring his allegation regarding the processing of his complaint
to the appropriate agency officials. See EEO Management Directive 110,
(MD-110) p. 5-25 (November 9, 1999); see also 29 C.F.R. � 1614.107 (a) (8)
(the agency shall dismiss an entire complaint that alleges dissatisfaction
with the processing of a previously filed complaint).
Therefore, based on a complete examination of the evidence of record,
we conclude that complainant has not presented sufficient evidence to
prove that the agency's articulated reasons were pretext for reprisal or
disability discrimination, or that his age actually played a role in the
agency's actions and had a determinative influence on the outcomes. See
Reeves, 530 U.S. at 141.
In so finding, we note complainant's suggestion that individuals at the
agency often receive promotions for a nondiscriminatory reason, namely
favoritism. See Affidavit of complainant, (December 18, 2000), p. 4.
Therefore, after a careful review of the record, 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
April 18, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants
for employment.