01a03202
11-21-2000
Arthur J. Abell, Jr., Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Arthur J. Abell, Jr. v. Department of the Interior
01A03202
November 21, 2000
.
Arthur J. Abell, Jr.,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A03202
Agency No. WGS99006
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.<1>
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
BACKGROUND
Complainant claimed discrimination based on race (While), sex (male),
age (over 40), and continued acts of reprisal (prior grievances, EEO
complaints, and a federal lawsuit) when, on August 1, 1998, he was not
selected for the position of Administrative Officer, GS-341-11, with
the agency's U.S. Geological Survey (USGS).
Complainant requested and reviewed documentation from USGS regarding the
selection. He believed he was more qualified than the selected candidate
(Selectee) (White, female, over 40), because he had twenty seven years
experience in administration, served six years as a GS-13 Administrative
Officer with the National Park Service, and had extensive training and
experience in park operating programs, in comparison to the Selectee,
who had less years of experience in administration.
The Selecting Official (SO) averred that she was seeking someone with
directly related, hands on experience in the day-to-day duties of the
position. She stated that she reviewed complainant's and three other
qualified candidates applications, and did not consider complainant to
be highly qualified because his most recent experience was managerial
and involved oversight, rather than involving actual performance of the
duties in question. She stated that it appeared that complainant would
have required a steeper learning curve that the Selectee, who could
perform the duties and be fully function in a minimal amount of time.
The agency found that complainant failed to establish a prima facie
case of discrimination based on race and age because the Selectee was
also White and over the age of forty. The agency further found that
complainant failed to establish a prima facie case based on reprisal
because his prior EEO activity occurred in January and May 1993,
five years prior to the events in question. The agency thus found no
causal relationship based on closeness in time. The agency found that
complainant established a prima facie case based on sex, but found
that the SO articulated legitimate, nondiscriminatory reasons for
the non-selection, namely, that complainant's more recent experience
was managerial and the SO was seeking someone with direct, hands-on
experience. The agency found that complainant failed to show that those
reasons were a pretext for discrimination.
On appeal, complainant argues that the key phrase in his formal complaint
was �continued acts of reprisal� and that he established a prima facie
case of discrimination based on age because he was fifty five years old
at the time and there was no evidence that the Selectee was older than he.
He also argues that he established a prima facie case of reprisal because,
in addition to the three complaints filed in 1993, he filed EEO complaints
in each subsequent year. Complainant also argues that a review of his
application reveals that he is observably superior to the Selectee.
FINDINGS AND ANALYSIS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Complainant has the initial burden
of establishing a prima facie case of discrimination. If complainant
meets this burden, the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Complainant must then prove, by a preponderance of the evidence, that
the legitimate reason articulated by the agency was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant can establish a prima facie case of discrimination by showing:
(1) that he is a member of the protected group; (2) that he was qualified
for the position; (3) that he was not selected for the position; (4)
that he was accorded treatment different from that given to a person
otherwise similarly situated who is not a member of his protected group.
See Keys v. Secretary of the Navy. 853 F.2d 1016, 1023 (1st Cir. 1988).
Complainant belongs to an identified protected class, and, according to
the SO, was qualified for the position. However, complainant was not
treated differently than other employees on the basis of race because
the Selectee was also White. Therefore, complainant failed to establish
a prima facie case based on race.
Complainant states a prima facie case based on sex because the Selectee
was female and may state a prima facie case based on age. Complainant was
aged fifty-five at the time of the alleged discriminatory event. The
record does not indicate the Selectee's age. The Selectee's government
application lists work experience dating to 1972, indicating that she is
at least age forty. For the purposes of this decision, the Commission
will assume that complainant states a prima facie case based on age.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, complainant must show: 1) that he engaged in
protected activity; 2) that the alleged discriminating official was aware
of the protected activity; 3) that he was disadvantaged by an action of
the agency contemporaneously with or subsequent to such participation;
and 4) that there is a causal connection between the protected activity
and the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d
80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The Commission finds that complainant established a prima facie case
of discrimination based on reprisal. Complainant states, and a review
of prior EEO appeals indicates, that complainant filed numerous EEO
complaints including complaints in 1997 and 1998. The SO was aware
of that activity because complainant so indicated on his application.
Complainant's non-selection occurred within a short time after his
protected activity. Thus, a causal connection can be shown based
on closeness in time between the events. Now that complainant has
established a prima facie case of discrimination based on sex, reprisal
and age, the agency has the burden of production to articulate some
legitimate, nondiscriminatory reason for its action. Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).
The SO averred that complainant was not as qualified for the position as
the Selectee because his most recent experience was managerial whereas the
Selectee had many years of hands-on experience performing the day-to-day
processes required for the position. The SO stated that the Selectee
could begin work immediately with little training.
At this point, complainant bears the burden of establishing that the
agency's articulated reasons are a mere pretext for discrimination.
Complainant can do this either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly by showing that
the agency's proffered explanation is unworthy of credence. Burdine,
450 U.S. at 256. In St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993), the Supreme Court held that a critical factor for the fact finder
in determining whether, as a matter of law, to find discrimination is
not whether the employer's explanation is credible, but whether it is
persuaded by the complainant that it was discrimination that motivated
the employer to act as it did. According to the Court, it is not
sufficient "to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination." Id. at 519.
In a non-selection case, pretext may be demonstrated in a number of ways,
including a showing that a complainant's qualifications are observably
superior to those of the selectee. Bauer v. Bailer, 647 F.2d 1037, 1048
(10th Cir. 1981)
Complainant claims that he was better qualified for the position
than the Selectee because he had twenty-seven years of experience in
administration, six years experience as a GS-13 Administrative Officer,
and extensive training and experience in part operating programs.
The evidence of record, however, supports the SO's statement that
she was seeking a candidate with hands-on experience. The vacancy
announcement indicates that the successful candidate would develop,
execute and monitor budgets, and analyze financial data for consistency;
all of which are day-to-day operations. The Selectee appeared to possess
more recent, relevant experience on that level than complainant.
Based on this evidence, we find that complainant has not established
that his qualifications for the position were "observably superior" to
the Selectee's. For that reason, and because the other evidence adduced
by complainant is insufficient to establish pretext, we find he has not
established that he was discriminated against as alleged.
CONCLUSION
For the foregoing reasons, the decision of the agency is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 21, 2000
__________________
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.