01a00321
03-16-2000
William H. Shelby, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
William H. Shelby, )
Complainant, )
) Appeal No. 01A00321
v. ) Agency No. 980536
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (�FAD�)
concerning his complaint of unlawful employment discrimination on the
bases of reprisal (prior EEO activity) and age (over-forty) in violation
of Title VII of the Civil Rights Act of 1964, 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.<1>
ISSUE PRESENTED
The issue presented herein is whether complainant has demonstrated by a
preponderance of the evidence that the agency discriminated against him
on the bases of his age (over-forty) and reprisal (prior EEO activity)
when he was not selected for a position within the agency.
BACKGROUND
The record reveals, that for the relevant period, complainant was
employed by the United States Department of Agriculture as a Supervisor
Agricultural Commodity Grader, GS-11. Complainant states that on or about
August 18, 1997, the agency posted a job announcement (6-34-402-7) for
an Agricultural Commodity Grader (FGIS Manager), for which he applied.
Subsequent to submitting his application for the above position,
complainant underwent a telephone interview. Thereafter, complainant
was notified on December 18, 1997 that he was not selected for the
position.
Believing that he was the victim of unlawful employment discrimination,
on December 24, 1997, complainant initiated contact with an EEO Counselor.
During the counseling period, complainant stated that he was discriminated
against when he was not selected for the aforementioned position.
Counseling failed, and on March 30, 1998, complainant filed a formal
complaint claiming that he was the victim of unlawful employment
discrimination on the bases of his age (over-forty) and reprisal
(prior EEO activity). The complaint was comprised of the matter for
which complainant underwent EEO counseling, discussed above.
The agency accepted the complaint and subsequently ordered an
investigation. The record reveals that complainant and several others
applied for the above position. Therefore, at the behest of the selecting
official, a panel was created to review and recommend the best qualified
applicant for the position. According to the record, the selectee and
the complainant were similarly graded with respect to qualifications
and experience, except that the selectee excelled beyond complainant
during the telephone interview. It is corroborated by the members of
the panel that complainant was more qualified with respect to education
and experience, but the telephone interview revealed that complainant
did not speak and respond to verbal questions as well as the selectee.
Therefore, since the position in question required a lot of in person
interaction with other federal and state officials, the panel recommended
the selectee, who displayed superior speaking skills during the telephone
interview.
On September 7, 1999, the agency issued a FAD finding that the agency
did not discriminate against complainant on the bases of his age or
prior EEO activity when they did not select him for the Agricultural
Commodity Grader (FGIS Manager) position. Specifically, the agency
found that complainant did not establish a prima facie case of age or
reprisal discrimination, but even if he had, he did not demonstrate
by a preponderance of the evidence that the agency's legitimate
nondiscriminatory reason was pretextual.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII or ADEA case
alleging discrimination is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973); Loeb v. Textron, Inc.,
660 F.2d 1003 (1st Cir. 1979) (applying the McDonnell Douglas scheme to
cases brought under the
ADEA). Complainant has the initial burden of establishing a prima
facie case of discrimination. McDonnell Douglas, 411 U.S. at 802.
If complainant meets this burden, then the burden shifts to the agency to
articulate some legitimate, nondiscriminatory reason for its challenged
action. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Complainant must then prove, by a preponderance of the evidence,
that the legitimate reason articulated by the agency was not its true
reason, but was pretext for discrimination. Id. at 256.
I. Title VII Claim
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). In general, complainant can establish a prima facie
case of reprisal, according to the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997). Complainant may establish a prima facie case of
reprisal by showing that: (1) he engaged in Title VII protected activity;
(2) the agency was aware of his protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse action.
However, although the initial inquiry in a discrimination case usually
focuses on whether the complainant has established a prima facie case,
following this order of analysis is unnecessary when the agency has
articulated a legitimate nondiscriminatory reason for its actions.
Washington v. Department of the Navy, EEOC Petition No. 0300056 (May 31,
1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether he or she has demonstrated,
by a preponderance of the evidence, that the agency's reasons for its
actions, were merely a pretext for discrimination. Id.; See Also United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-17
(1983). Therefore, in the present case, the Commission will bypass the
prima facie stage of the analysis and focus on whether the complainant
has demonstrated, by a preponderance of the evidence, that the agency's
explanation for its action, was a pretext for discrimination based
on reprisal.
In the present case, the complainant has argued throughout the
investigative stage of his complaint that he was more qualified than
the selectee. However, these are bare assertions supported by no
direct evidence. Rather, the record clearly reveals that both the
selectee and the complainant were
similarly qualified. In fact, the selectee served for a year as an acting
manager in the same position in which he was selected for. Therefore,
contrary to complainant's bare assertions, the
evidence does not clearly establish that his qualifications were plainly
superior to those of the selectees, thereby supporting a finding
of pretext. See Vanek v. Department of the Treasury, EEOC request
No. 05940906 (January 16, 1997) (citing Bauer v. Bailor, 647 F.d 1073,
1048 (10th Cir. 1987)). Accordingly, the complainant has failed to
prove, by a preponderance of the evidence, that the agency retaliated
against him for his prior EEO activity when they did not select him for
the above cited position.
B. ADEA Claim
In a ADEA case, complainant can establish a prima facie case of
discrimination by showing that: (1) he is at least forty years old; (2) he
was qualified for the position; (3) he was not selected for the position;
and (4) he was accorded treatment different from that given to a person
otherwise similarly situated who is not a member of his protected groups
or is considerably younger that he. See O'Connor v. Consolidated Coin
CAterers Corp., 517 U.S. 308 (1996); Terrell v. Department of Housing
and Urban Development, EEOC Appeal No. 01961030 (October 25, 1996). The
ultimate burden remains on complainant to demonstrate, by a preponderance
of the evidence, that age was a determinative factor. Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979); and Fodale v. Department of Health and
Human Service, EEOC Request No. 05960344 (October 16, 1998).
Based on these principles of law, we conclude that complainant established
a prima facie case of age discrimination because he was over forty years
of age, was qualified for the position, and was not selected for the
position in favor of a younger employee. However, we note that complainant
fails to prove that the agency's legitimate, nondiscriminatory reasons
for its selection were a pretext for discrimination Although complainant
is within the ADEA's protected group, complainant presented no credible
evidence that age was a determinative factor in the selection of the
Selectee, since the Selectee as well as all of the other applicants
that were interviewed were also over the age of 40. While complainant's
education and experience is somewhat superior to that of the Selectee, the
record clearly indicates that the agency did not select complainant for
the position because he failed to perform as well as the Selectee during
the telephone interview, which the agency considered to be essential for
the position. Therefore, the Commission finds that complainant has not
shown, by a preponderance of the evidence, that the agency's articulated
nondiscriminatory reason was pretextual.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
March 16, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________ ________________________
Date Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.