01992931
02-08-2002
Thomas P. Bezelik, Complainant, v. Lt. Gen. Michael V. Hayden, Director, National Security Agency, Agency.
Thomas P. Bezelik v. National Security Agency
01992931
February 8, 2002
.
Thomas P. Bezelik,
Complainant,
v.
Lt. Gen. Michael V. Hayden,
Director,
National Security Agency,
Agency.
Appeal No. 01992931
Agency No. 98-019
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 his age (date of
birth January 23, 1947), reprisal (filed prior EEO complaint in September
1994), and disability (degenerative disk and rheumatory arthritis) when,
on October 3, 1997, he learned he was nonselected for an �Information
Security Acquisition Center Team Leader� position (Branch Chief, Y291).
The record reveals that during the relevant time, complainant was employed
as a Senior Engineering Specialist in the Information Security Acquisition
Center of the Technical Services Organization in the Information Security
and Technical Support Group in Ft. Meade, Maryland. On or about May 11,
1997, a Branch Chief position became available, although it was never
formally advertised. Complainant expressed an interest in the Branch
Chief position, and was considered along with six other candidates.
Complainant was informed in a meeting with Chief, Y2, on October 3, 1997,
that he was not selected for the position. Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on March 3, 1998. 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 failed to establish a
prima facie case of discrimination based on disability. In so finding,
the agency concluded that complainant did establish that he was disabled
within the meaning of the Rehabilitation Act, however he failed to
establish that he was treated less favorably than similarly-situated
non-disabled individuals, who were also considered for the position
that complainant sought. The agency also concluded that complainant
failed to establish a prima facie case of age discrimination, in that he
did not demonstrate that a similarly-situated and substantially younger
applicant, with similar or less experience, was selected. As to reprisal,
the agency concluded that complainant failed to establish a prima facie
case because of the lack of temporal proximity between complainant's prior
EEO activity and his nonselection, and because complainant adduced no
evidence of any retaliatory motive on the part of the selecting official
(SO). The agency further concluded that complainant was nonselected for
legitimate, nondiscriminatory reasons. Specifically, twelve criteria were
used to evaluate the candidates, and the selectee was the most qualified
candidate. The selectee's record was superior in terms of supervisory
experience, education, subject matter knowledge, management ability,
demonstrated performance, and interacting with individuals at all levels.
The FAD also mentioned that complainant had some performance deficiencies,
he was reluctant to share information and was not a team player, there
was a five-month period in 1996 when he did not perform his duties,<2>
and he was often in training and, therefore, was unavailable to perform
his duties. The FAD concluded that complainant failed to prove that the
agency's reasons were pretextual.
Complainant, through his attorney, submitted a lengthy and detailed
brief on appeal, with the following principal contentions:
the agency has provided an incomplete revelation of complainant's
extensive educational background;
the agency violated the �Principles Applicable to Competitive Selection�
which applied to the selection process in this case;
Complainant received a letter of appreciation which distinguished him
for his work with the U.S. Army Communications-Electronic Company for
the past 6 years;
the agency does not vigorously or conscientiously enforce the Age
Discrimination in Employment Act, the Rehabilitation Act of 1973 and
the Americans with Disabilities Act;
the EEO investigator did not thoroughly review the circumstances under
which the alleged discrimination occurred, nor did she include proper
comparative evidence.
The agency requests that we affirm its FAD.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
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 personnel
action at issue, 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 based on age,<3> reprisal and disability, the Commission
turns to the agency to articulate a legitimate, nondiscriminatory reason
for its action. Upon review of the record, the Commission finds that
the agency selected the selectee because he was more qualified for
this supervisory position than complainant and all other candidates,
when measured against the twelve criteria that were considered.
The record also reveals that a factor in management's decision to
nonselect complainant was their perception of him as someone who did not
take direction well, and did not get along well with business managers
and co-workers. Upon review of the record, the Commission finds that
the agency has articulated legitimate, nondiscriminatory reasons for
its action.
The burden returns to complainant to show that the agency's reasons
were pretext for discrimination. The agency has broad discretion
to set policies and carry out personnel decisions, and should not be
second-guessed by the reviewing authority absent evidence of unlawful
motivation. Burdine, 450 U.S. at 259; Vanek v. Department of the Treasury,
EEOC Request No. 05940906 (January 16, 1997). In an attempt to prove
pretext, complainant essentially argues that his qualifications are
�plainly superior� to those of the selectee. We recognize that a
complainant may be able to establish pretext with such a showing. See
Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2,
1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However,
the evidence that complainant has submitted, in the form of letters of
commendation and co-workers' testimony, merely affirms what the agency
officials have consistently conceded; that the quality of complainant's
work was, from a technical standpoint, generally excellent, and that
he interacted well with contractors and customers. Complainant has not
submitted persuasive evidence to refute the agency officials' contention
that complainant had difficulty interacting with management. We have
also considered complainant's argument that his excellent team leader
abilities are evidenced in the fact that he was lead Contracting Officer
Representative (COR) for 13 years. However, we are not persuaded that
the fact of his serving as a team leader, in and of itself, refutes the
contention that his team leader skills are lacking. After carefully
reviewing the evidence, we are not persuaded that complainant's
qualifications, including his management ability, are plainly superior
to the selectee. The Commission further finds that complainant failed to
present other evidence that more likely than not, the agency's articulated
reasons for its action were a pretext for discrimination based on age,
disability or reprisal.<4>
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
February 8, 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.
2 The agency asserts that complainant was given permission by management
to spend some time looking for another job. He apparently did so from
July to October, 1996, during which time he did little or no work for
the agency. At the end of the 5 month period, he asked permission to
stay in his present job, and this request was granted.
3 Although we will assume arguendo that complainant established a
prima facie case of age discrimination, we note that complainant and
the selectee were both over age 40 at the time of the events at issue.
Specifically, complainant was 50 years old, and the selectee was 46
years old. Therefore, the selectee was arguably not �substantially
younger� than complainant, as is required for an inference of age
discrimination to be drawn.
4 Evidence of record suggests that a personality conflict exists
between the Chief, Y29 and complainant, and that this may have
also factored into the decision to nonselect complainant. However,
unfavorable treatment based on personal dislike is not the equivalent
of discrimination. See Ackerman v. Diamond Shamrock Corp., 670 F.2d 66
(6th Cir. 1982) (personality conflict between plaintiff and superiors
is legitimate reason for action); Demello v. Department of the Navy,
EEOC Appeal No. 01985327 (September 28, 2001).