01a04448
02-06-2001
Clayton G. Porter, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Clayton G. Porter v. Department of Defense/Defense Logistics Agency
01A04448
February 6, 2001
.
Clayton G. Porter,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A04448
Agency No. HC-98-005
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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the basis of age (D.O.B. 2/10/46), when he was not selected for
the position of Contract Technical Assessment Manager (CTAM), GS-1101-14.
For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was
employed as a GS-0855-13 Electrical Engineer at the agency's West Area
Office (�facility�). The record reflects that the CTAM position was
advertised in September and October of 1997, and complainant was one of
five individuals who were interviewed and considered by the Selecting
Official (SO). On March 1, 1998, the SO chose selectee (D.O.B. 8/8/63)
for the CTAM position. Complainant stated that the SO informed him that
he had chosen the selectee for the position at issue as he was looking
for �stability.� Complainant also stated that the SO was aware that
complainant was retirement eligible in three (3) years, and contends
that the use of the word �stability� was code for seeking to place a
younger person in the CTAM position who would occupy the position for a
longer period. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
June 12, 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 established a prima
facie case of age discrimination, as he is a member of the protected
group by virtue of his age, applied for and was qualified for the
position at issue and was not selected in favor of a person outside
of his protected group. However, the FAD found that the agency
articulated legitimate, nondiscriminatory reasons for its actions,
namely, the testimony of the SO that selectee was the most qualified
candidate for the position as he had more experience at the GS-13
level and more experience in supervising multi-disciplinary teams.
The FAD further found that complainant failed to demonstrate that the
agency's articulated reasons were more likely than not a pretext for
discrimination. The FAD found that while complainant had more overall
experience with the agency, he did not have as much experience at the
GS-13 level, did not have as much supervisory experience at that level
and had not served in any capacity at the GS-14 level as had selectee.
The FAD further noted that while both selectee and complainant possessed
advanced degrees, selectee held positions of increasing responsibility
and possessed experience managing high-level employees. On appeal,
complainant contends that he had a broader and more diverse background
than did the selectee and that the agency discriminated against him due
to his age. The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue), the Commission agrees with the agency that complainant
established a prima facie case of age discrimination. In response to
complainant's prima facie case, the Commission finds that the agency has
likewise met its burden of articulating legitimate, nondiscriminatory
reasons for its employment decision. Specifically, the agency presented
credible testimony from the SO that he chose selectee over complainant
for valid business reasons, e.g., as selectee had been at the GS-13 level
longer than complainant, had more supervisory experience at the GS-13
level and had been temporarily promoted to be the acting Management
Office Chief. We find the agency's reasons are clear and specific so
as to give complainant a full and fair opportunity to show pretext.
In an effort to show pretext, complainant contends that, based on
his years of experience and qualifications, his qualifications were
superior to those of selectee for the position of CTAM. However, we
find that notwithstanding his longer years of service with the agency,
complainant has presented insufficient probative evidence to support
the conclusion that his qualifications and background experience were so
plainly superior to that of selectee such that a finding of discrimination
may be warranted. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
In so finding, the Commission notes that the position description states
that the position requires providing leadership and supervision through
subordinate teams of personnel ranging in grade from GS-06 to GS-14,
and the record indicates that selectee had more supervisory experience
at the GS-13 level, possessed experience managing high-level employees
from varying fields, was a Supervisory Quality Assurance Specialist
Team Leader prior to being selected for the position at issue and also
previously served as an acting Management Office Chief.
Moreover, the Commission has considered complainant's arguments
regarding the perceived irregularities regarding the agency's decision
to fill the position with selectee, however, we nevertheless find
insufficient evidence in the record to substantiate complainant's
claims. In so finding, we note that while complainant contends that
the SO stated that he wanted �stability� in the position at issue,
the SO testified that he would not have used the word stability as a
code word for promoting younger people. Investigative Report, at F-12.
In addition, the Commission finds that statements attributed to the SO,
namely, that the facility's management was older and that the selectee
would bring �youth and new blood,� is not explicit evidence of age
discrimination, particularly when the SO himself was only three years
younger than complainant at the time and testified that he was not aware
that complainant would be retirement eligible in three (3) years at the
time he chose the selectee.<2> In any event, complainant presented no
evidence of a "causal link" between the SO's comments and the decisional
process leading to the selection of the selectee.
Further, we find that, while complainant asserts that the agency's
employment decision was premised on preselection, he did not present
sufficient evidence to support his assertion. In addition, we find that
evidence regarding the SO's personal preference for selectee, even if
found to be true, does not demonstrate that preselection occurred in
the agency's selection process. We further find that, while evidence
of preselection may operate to discredit the employer's explanation for
its employment decision, preselection per se does not violate Title VII
or the ADEA when it is based on the qualifications of the preselected
individual and not on some basis prohibited by Title VII or the ADEA.
See Autry v. N.C. Department of Human Resources, 820 F.2d 1384 (4th
Cir. 1987) and Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th
Cir. 1986). After careful review, we find that complainant has failed to
prove, by preponderant evidence, that the agency's employment decision
was motivated by a discriminatory animus based on his age. Therefore,
after a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
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
February 6, 2001
__________________
Date
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 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.
2 We note that these statements were not addressed in the FAD, although
they were part of the agency's Investigative Report.