01986091
08-16-2000
Charles J. Crane, Complainant, Bill Richardson, Secretary, Department of Energy, Agency,
Charles J. Crane v. Department of Energy
01986091
August 16, 2000
Charles J. Crane, )
Complainant, )
) Appeal No. 01986091
) Agency No. 9752WAPA
)
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency, )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning his
complaint of unlawful employment discrimination 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, as amended,
29 U.S.C. � 621 et seq.<1> Accordingly, the appeal is accepted in
accordance with 64 Fed. Reg. 37,644,37,659 (1999) (to be codified at 29
C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the bases of age (49 years old) and reprisal (EEO activity)
when he was not selected for the position of Foreman II/III.
BACKGROUND
Complainant was an Electrician Foreman II at the Desert Southwest Regional
Office of the Western Area Power Administration. Complainant applied for
promotion to a Foreman II/III Electrician position and a selecting panel
listed him as Best Qualified with four other employees. All but the
Selectee were over 40 years of age. The Selectee was 39 years of age.
Complainant was notified on October 2, 1996, of his non-selection.
He contacted an EEO counselor on October 8, 1996. Complainant claimed
that the selecting official (SO) made his decision based on the Selectee's
age, and stated that he believed that the Selectee was not as qualified
as he or the other candidates because he had less experience.<2>
The SO averred that age was not a factor in the selection, that he was
unaware of any of the candidates' ages, and that he chose the Selectee
because he believed, based on background checks, interviews and a review
of the applications, that the Selectee had superior leadership skills,
knowledge of voltage equipment, electrical instrument experience, and
safe work practice experience. The SO averred that in mid-October 1996,
based on a union representative's suggestion, he offered complainant a
desk audit as a way of promoting him, but rescinded the offer on October
24, 1996, when he became aware that two other employees filed informal
EEO complaints about the desk audit.<3> The SO decided to fill the next
position through the merit promotion system. He averred that he was
unaware at that time that complainant had contacted an EEO counselor.
The record indicates that two other Electrician Foreman II positions
were filled in 1996. One selectee was born on October 19, 1946, and
the other was born on October 6, 1940.
The agency issued a final decision finding that complainant established
a prima facie case of discrimination based on age, but that the
agency stated legitimate, nondiscriminatory reasons for its actions
which complainant failed to show were pretext for discrimination.
The agency found that complainant failed to establish a prima facie
case of discrimination based on reprisal because the SO was not aware
of complainant's protected activity. Complainant appealed.
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).
This established order of analysis, 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 articulates a legitimate,
nondiscriminatory reason for the actions at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis,
that is, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The agency explained that
the SO believed that the Selectee possessed superior leadership skills,
knowledge of relevant equipment and greater experience.
The burden returns to complainant to demonstrate that the agency's reason
was a pretext for discrimination, that is, that the agency was more
likely motivated by discriminatory reasons. Burdine, 450 U.S. at 253.
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 a non-selection case, pretext may be demonstrated in
a number of ways, including a showing that a complainant's qualifications
are plainly 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. Members of the selecting panel stated that they believed all
of the candidates were equally well qualified for the position, although
two members stated that they believed complainant was the most qualified.
Complainant also claimed that the Selectee falsified his application.
However, whether the Selectee falsified information in his application
is irrelevant to a determination of whether the SO based his selection
on illegal criteria. We therefore find that complainant has not
established that his qualifications for the position were "plainly
superior" to the Selectee's.
Complainant provided no evidence in support of his claim that he was not
selected based on his age. The record reveals that two other employees
over the age of 40 were promoted during the same year to the same
position. Complainant failed to prove that he was treated differently
than similarly situated employees based on age, and has not proven that
the agency's articulated reasons were a pretext for discrimination.
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).
We find that complainant failed to establish a prima facie case of
discrimination based on reprisal because he has not demonstrated that
the SO was aware of his protected activity at the time that the offer
of a desk audit was withdrawn. For that reason, and because the other
evidence adduced by complainant is insufficient to establish pretext,
we find that he has not established that he was discriminated against
as claimed.
CONCLUSION
Accordingly, the decision of the agency is proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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
August 16, 2000 ________________________________________
DATE Carlton M. Hadden, Director
Office of Federal Operations
1 On 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.
2 Complainant also claimed that the Selectee falsified information
regarding his experience in his application.
3 Complainant claimed the desk audit offer was withdrawn because he
filed the instant complaint.