01A03016
04-15-2002
Wayne H. Cuddeback, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Wayne H. Cuddeback v. Department of Justice
01A03016
April 15, 2002
.
Wayne H. Cuddeback,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A03016
Agency Nos. P-97-9205; P-97-9320
Hearing Nos. 170-99-8093X; 170-99-8094X;
170-99-8095X; 170-99-8096X; 170-99-8097X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaints 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 order.
BACKGROUND
The record reveals that complainant, a Maintenance Mechanic General
Foreman, WS-4749-13 at the agency's Allenwood Federal Prison Camp,
Montgomery, Pennsylvania facility, filed formal EEO complaints on July 30,
1997 and December 8, 1997, alleging that the agency had discriminated
against him on the bases of age (50)<1> and reprisal for prior EEO
activity when:
(1) on May 9, 1997, he was notified of his non-selection for the position
of Facility Manager, GS-1640-13 at the Federal Detention Center (FDC)
Seatac, Washington (Position 1);
on May 13, 1997, he was notified of his non-selection for the position
of Construction Representative, GS-809-11 at the Metropolitan Detention
Center (MDC) Guaynabo, Puerto Rico (Position 2);
on May 7, 1997, he was notified of his non-selection for the position
of Facility Manager, GS-1640-13 at the MDC in Brooklyn, New York
(Position 3);
on May 7, 1997, he was notified of his non-selection for the position of
Maintenance Mechanic (general foreman), WS-4749-14 at the Metropolitan
Correction Center (MCC) in New York, New York (Position 4);
on October 16, 1997 and November 7, 1997, he received lower performance
log entries and his supervisor refused to discuss his evaluations with
him and to give him credit for work performed.
At the conclusion of the investigations, complainant received a copy
of the investigative reports and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding no discrimination.
Complaint 1
Position 1
The AJ found the following facts. The selecting official for Position 1
(S1) based his selection on his review of the candidates' qualifications
and the Regional Facility Administrator (R1's) recommendation.
R1 checked references for individuals on the best qualified list,
including complainant, and discussed each candidates' qualifications
with the Associate Warden or Warden at FDC Seatac before making a
recommendation to S1. The selectee (C1) (48, no prior EEO activity)
was recommended by R1.
Position 2
The Regional Director, Atlanta Regional Office (S2) was the selecting
official for Position 2. S2 selected the selectee (C2) (30s, no prior EEO
activity) because of his qualifications and experience at MDC Guaynabo,
Puerto Rico and because the former Warden (R2) recommended him.
Position 3
The former Regional Director, Northeast Region (S3) was the selecting
official for Position 3. The former Regional Facilities Administrator,
northeast regional office (R3) recommended the selectee (C3) (54, no prior
EEO activity) for the position. Since S3 had retired prior to providing
an affidavit or testimony, the Human Resources Administrator (HR)
testified that the usual practice of S3 was to receive recommendations
from R3 and the Warden.
The AJ found that complainant failed to establish a prima facie case of
age discrimination with respect to Positions 1 and 3 because C1 was only
two years younger than complainant and C3 was older than complainant.
The AJ also found that complainant did not established a prima facie case
of reprisal. According to the AJ, the record reveals that complainant
filed his first EEO complaint (P-97-9205) on July 30, 1997, and his
second complaint (P-97-9320) on December 8th, 1997. Prior to the EEO
activity at issue herein, complainant had represented another employee
in an EEO case which was filed in March, 1994. On August 20 and 21,
1997, complainant represented that employee at the EEOC hearing. While
complainant's supervisor (S0) was aware of complainant's 1994 EEO activity
and complainant's first EEO complaint filed on his own behalf in July,
1997, the AJ found no causal connection between complainant's prior EEO
activity and the first three selections. The AJ noted that the record
was devoid of evidence showing that either the recommending officials
or the selecting officials were aware of complainant's prior EEO activity.
Assuming, arguendo, that complainant had established a prima facie case
for Positions 1-3, the AJ found that the agency articulated legitimate,
non-discriminatory reasons for its employment decisions. With respect to
Position 1, S1 explained that he selected C1 based upon C1's experience as
a Facility Manager with 13 years supervisory experience, his experience
as a department head at a variety of institutions, and the fact that C1
had a Master's Degree in counseling. S1 also testified that C1's broad
range of experience and qualifications were necessary at the new Seatac
Facility. The AJ also noted that R1 testified that he recommended C1
for the position because he was viewed as a facility management expert.
R1 further testified that complainant did not have the same level of
experience or knowledge and that he needed to obtain more administrative
knowledge of the job.
With respect to Position 2, S2 testified that C2 was selected based upon
his experience and outstanding performance at the Guaynabo facility.
Both S2 and R2 testified that C2 had a strong working knowledge of the
constraints and nuances of the construction trade and other businesses
in Puerto Rico which was invaluable for the job. They also explained
that C2 was bilingual, which was an important factor they considered in
recommending and selecting C2 for the position.
With respect to Position 3, R3 testified that he recommended C3 for
the position based upon his past experience as a Facility Manager.
HR also testified that from her review of the applications, it appeared
that C3 had a much broader range and depth of experience from working in
numerous jobs at various facilities. Complainant's experience came from
working at a minimum security facility and in one specific area, while
C3's experience came from working at higher level security facilities
in different locations.
Lastly, the AJ concluded that complainant did not present sufficient
evidence of pretext or that the employment actions were motivated by
age or complainant's participation in EEO activity.
Complaint 2
Position 4
With respect to Position 4, S3 selected the selectee (C4) (45, no prior
EEO activity) for Position 4. Both the Warden (R4) and the Facility
Administrator (R5) recommended C4 for the position. R5 stated that after
checking references for all applicants on the best qualified list, he
recommended C4. In addition, the supervisor for Position 4 (S4) stated
that he also made reference checks but made no specific recommendations
to management. S4 forwarded the information he obtained through the
associate warden who also recommended S4 for the position.
With respect to Position 4, the AJ found that complainant established
a prima facie case of reprisal. According to the AJ, the evidence
established that S0 mentioned to S4 that complainant had filed some
type of complaint or grievance and that S0 sounded upset. In addition,
the record shows that R5 did not recommend complainant because of
complainant's poor writing skills, work ethic, often missed deadlines,
and because his peers did not respect him. R5 stated that he gained this
information through his staff assist visits to complainant's facility.
R5 also admitted that he was aware of complainant's prior EEO activity.<2>
The AJ also found that the agency articulated legitimate,
non-discriminatory reasons for its employment action and the complainant
failed to show that such reasons were a pretext for employment
discrimination or reprisal. Specifically, the AJ found that R4 testified
that he made a recommendation to S3 regarding his preference for Position
4. R4 stated that the duties of Position 4 involved directing the work of
the HVAC foreman, plumbing foreman, electrical foreman, carpentry foreman
and construction representative who carried on repairs and maintenance in
the day-to-day running of the institution. R4 stated that he recommended
C4 based on his knowledge, skills and abilities, and in particular,
his experience in the construction and building trade. In addition,
R5 testified that he recommended C4 because he had been responsible
for meeting departmental goals and deadlines, had excellent knowledge
of policy, was self-motivated with good communication skills, and was
respected by his peers. R5 believed that complainant did not possess
those skills based on his observation during visits to complainant's
facility. S4 testified that he did not make any specific recommendation
but forwarded all the information he obtained to the associate warden.
According to the affidavit provided by the associate warden (AS), he
did not make any specific recommendation to R4, but did not want the
one internal candidate on the list. At the hearing, AS testified that
he did recall recommending C4 and another external candidate. The AJ
also found that all of the management officials who made recommendations,
testified that while C4 was an external candidate, he had in fact worked
at the MCC New York facility and performed superior construction work for
the warden's house and in other areas of the facility. The AJ concluded
that even though there was some inconsistency as to whether AS actually
recommended a particular individual, such inconsistency was not material
to the case and the record is clear that C4 was favored because of the
quality of his work, his qualifications and his work history at MCC New
York and the MDC Brooklyn facilities. The AJ also found that the evidence
did not show that complainant was more qualified than C4. Lastly, the AJ
found that complainant failed to prove pretext or discriminatory animus
with respect to the selection of C4 for Position 4.
Performance Log/Evaluation
On October 16, 1997 and November 7, 1997, complainant received two lower
performance log entries from S0. Complainant contends that S0 refused
to discuss the performance evaluations with him and refused to give him
credit for work performed.
With respect to the issue regarding complainant's performance log and
evaluation, the AJ determined that complainant did not establish a prima
facie case of age discrimination. The AJ noted that the complainant did
not show evidence of similarly situated employees outside his protected
class who were treated differently under similar circumstance. However,
the AJ found that complainant established a prima facie case of reprisal.
The AJ found that S0 was aware of complainant's prior EEO activity at
the time of the employment action.
However, the AJ concluded that S0 articulated a legitimate,
non-discriminatory reason for his employment action which complainant
failed to rebut or otherwise prove to be motivated by retaliatory animus.
Specifically, S0 testified that he gave complainant lower performance
entries in October and November, 1997 because of a decline in certain
areas of complainant's work. S0 explained that complainant's log entries
for his staff were due no later than October 15, 1997, but were received
late. In addition, the entries included inaccuracies. Accordingly,
S0 rated complainant lower than previous quarters. S0 further states
that during the same period, complainant turned in the department Visa
reconciliation and that the reconciliation contained errors that would
adversely impact the budget, had they not been caught. S0 explained
that the log entries for the period in question were justified based
upon complainant's performance.
The AJ determined that complainant failed to prove pretext. In fact,
the AJ noted that the record revealed that complainant's log entries
were late on more than one occasion, and that complainant's reports
regarding the Visa reconciliation did contain errors. Furthermore, the
AJ found that the record revealed that S0 provided a positive overall
performance for the rating year. Since complainant was unable to prove
pretext or retaliatory animus, the AJ determined that complainant was
not retaliated or discriminated as alleged.
The agency's final order adopted the AJ's decision.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's age.
Contentions on Appeal
With respect to Position 1, complainant argues that he was rated higher
on the qualification register than C1. The record shows that complainant
received a score of 168 and C1 received a score of 155. Complainant was
ranked 4th and C1 was ranked 5th. We do not find the difference in scores
an indication that complainant was substantially more qualified than
complainant, sufficient to reflect discriminatory or retaliatory animus.
Moreover, complainant's argument suggests that the applicant who rated
1st on the best qualified list should have been selected, since he had the
highest score and ranking. Complainant also argues that his application
was process differently than C1's application. Specifically, complainant
asserts that R1 checked C1's references but not complainant's references.
We find that the failure to check all applicant's references is not an
indication of pretext or discriminatory animus.
With respect to Position 2, complainant argues that the position was
re-announced three times. The agency explained that they re-announced
the vacancy three times in order to obtain a larger applicant pool.
Complainant has failed to show that this explanation was pretextual.
In addition, complainant argues that he was more qualified. However, the
record indicates that C2 was already working at the Guaynabo facility
and was bilingual. While S2 and R2 did not dispute complainant's
qualifications, they found C2 to be a better match at this particular
location. Complainant has failed to show how that explanation is a
pretext to mask discrimination or retaliation. Complainant also argues
that S2's statement that �complainant's EEO activity did not play a factor
in the process� proves that S2 was aware of his prior EEO activity.
We disagree. While clearly S2 was aware of complainant's prior EEO
activity at the time he gave a statement to the EEO investigator pursuant
to complainant's EEO complaints, there is no evidence in the record to
support that S2 was aware of complainant's prior EEO activity at the
time of the selection.
With respect to Position 3, complainant generally argues that the �agency�
was aware of his prior EEO activity at the time of the selection.
However, complainant fails to point to specific evidence which could
support this conclusion and we find no such evidence in the record.
Complainant also argues that the agency withheld information that
would have reflected negatively on the agency. The complainant argues
that the AJ failed to consider multiple adverse inferences that
she had awarded to complainant for the agency's failure to produce
documents and answer interrogatories. The information includes position
descriptions for Facility Manager at Federal Correctional Institution
(FCI) in Tucson Arizona; Utility Repair Operator Foreman, Guaynabo,
Puerto Rico; Construction Representative at the FCI in Fairton; and
Facility Manager, FCI Fort Dix, New Jersey. According to complainant,
this information would have shown that complainant was more qualified
than the selectees. However, it is unclear to us how such information
could have indicated that complainant was more qualified. Even assuming
that such documentation could show that complainant was more qualified,
complainant has not shown that the explanations provided by the selecting
and recommending officials were not true or that their non-selection of
complainant was motivated by age discrimination or reprisal.
Complainant also argues that the agency failed to produce staff assists,
operational reviews and program reviews of the mechanical department
at FC1, Fort Dix, New Jersey from August 1992 through the present.
According to complainant, this information would have shown that C3
received a poor program review because he lacked the skills, knowledge,
and abilities necessary to perform the required duties of Position 3.
Assuming that such information would indicate that C3 lacked the skills,
knowledge, and abilities necessary to perform the required duties of
Position 3, we find no evidence in the record showing that R3 or S3 knew
about C3's lack of skills at the time of the selection. In addition,
we find that C3's application gives the appearance that he was qualified
and that he held the experience and knowledge which R3 and S3 relied
upon when selecting him for the position.
Complainant asserts that the agency also failed to provide memoranda and
documents showing complainant working in the capacity of Facility Manager
at FPC Allenwood, Montgomery, Pennsylvania. Complainant argues that such
documents would have shown that complainant had 3 years experience working
as an acting Facility Manager and had the knowledge, skills and abilities
required for the position. We find that even without such documentation,
the record indicates that complainant had experience �acting� as a
Facility Manager and was qualified for Position 3. However, R3 and S3
explained that they found C3 more desirable due to his experience as an
actual Facility Manager and department head for 2 years, in addition to
other factors. R3 and S3 did not dispute complainant's qualifications.
Accordingly, we find this evidence does not serve to prove pretext or
discriminatory animus.
Complainant also argues that the agency failed to provide the crediting
plan utilized for the rating and ranking of the positions. Complainant
asserts that such information would have shown that complainant was
improperly rated. In addition, such evidence would have also established
that those applicants who made the best qualified list, were actually not
qualified. We find that the record indicates that officials from the Human
Resources Department conducted the rating and ranking of all applicants,
separately, in order to determine which applicants made the best qualified
list. The selecting and recommending officials for Positions 1-3 had
no part in this process. Accordingly, even if the rating and ranking of
applicants were improper, there is no evidence in the record to suggest
that the selecting or recommending officials were aware of such errors.<3>
We find that the application of each selectee indicates that they were
qualified for the positions they were each hired to perform.
Complainant also argues that the agency failed to produce evidence
regarding the disciplinary actions taken against C3. Assuming that R3
and S3 knew of C3's prior demotion and discipline, the fact that such
demotion and discipline did not preclude C3's selection does not, in
and of itself, indicate pretext or discriminatory/retaliatory animus.
The record still indicates that C3 was qualified for the position and
possessed the superior knowledge and experience that R3 and S3 based
their selection on.
Complainant also argues that S3 �refused� to cooperate with the EEO
investigation and then retired before the hearing. We disagree with
complainant's characterization of the record and find that S3 retired
during the investigation but before the investigator could request an
affidavit. We do not find evidence of bad faith on the part of S3 or
the agency. Moreover, we note that the AJ refused to grant complainant's
request for an adverse inference with respect to this issue.
After considering complainant's contentions on appeal, including those
not specifically addressed herein, we discern no basis to disturb
the AJ's decision. 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 agency's final order.
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 15, 2002
__________________
Date
1 All references to age indicate the age at the time of the alleged
discrimination.
2 The AJ noted that S4 testified that he never divulged this information
to his supervisor and he did not know exactly what kind of complaint
or grievance complainant had filed. In addition, the AJ noted that R5
stated that he did not consider complainant's EEO activity when deciding
not to recommend him.
3 In addition, there is no evidence that the rating process was biased
in any manner.