01A02754
07-25-2002
Dallas E. Gilbreath, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services (Food & Drug Administration), Agency.
Dallas E. Gilbreath v. Health and Human Services
01A02754
07-25-02
.
Dallas E. Gilbreath,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services
(Food & Drug Administration),
Agency.
Appeal No. 01A02754
Agency No. FDA-R-049-98
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint 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 in part and reverses in part,
the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Consumer Safety Officer, GS-0696-12, on the agency's
Investigations Branch Food Team located in the Dallas, Texas District.
Complainant sought EEO counseling and subsequently filed a formal
complaint on May 20, 1998, alleging that he was discriminated against
on the bases of race (Caucasian), sex (male), and age (D.O.B. 5/2/40)
when he was not selected for the position of Consumer Safety Officer,
GS-0696-13 (Foods-Seafood), which was advertised in Vacancy Announcement
No. FDA-75073-LT. Complainant and two other Caucasian applicants,
one male and one female, made the certificate of eligible applicants.
The male applicant (Applicant 1) was approximately 45 years old and the
female applicant (Applicant 2) was approximately 40 years old.
The Selection Panel (Panel), which was chosen by complainant's second
level supervisor (RMO), consisted of three members. All the panelists
agreed that Applicant 1 had the best qualifications. However, Applicant
1 accepted a position with another agency early in the review process;
therefore, only complainant and Applicant 2 were considered for the
vacancy. The Panel did not interview the candidates, but instead made
inquires to their supervisors, co-workers and other management officials
about their work performance and expertise. The Panel determined
that complainant was the best qualified of the remaining candidates
but decided not to recommend either applicant for the position for the
reasons stated below. Complainant was informed of the Panel's decision
on February 2, 1998. Complainant was also told that the position would
probably not be filled.
Subsequently, complainant asked his second level supervisor (RMO)
for ways to improve his chances of being chosen if the position was
re-announced. RMO told complainant that while his technical skills were
good, he needed to assume a greater leadership role with the Food Team,
and improve his communication skills. RMO also indicated that it was
the Panel's perception that complainant did not want to be a leader,
lacked experience in violations inspections over a long period of time,
and that there was no evidence of his ability to put together a complex
case. Dissatisfied with the explanations he received, complainant filed
the instant complaint. Complainant also contended that the Panel did
not want to give him the position because of his age, and because they
thought that he might retire if he did not get the position. In this
regard, the record shows that a Panel member asked complainant's former
supervisor if complainant had any retirement plans as �there was some
concern about selecting someone who would not be around from more than
a couple of years.� Complainant also contended that the position was
not filled so that a 40-year-old female co-worker (C-1) could obtain
the needed experience in order to qualify for the GS-13 position in
the future. The record shows that C-1 was promoted to a GS-12 in April
1997 and was eligible for a promotion to a GS-13 in April 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 failed to make
a prima facie case of race, sex, or age discrimination because the
position at issue remained unfilled. The agency then concluded that
assuming, arguendo, that complainant established a prima facie case
of discrimination, the RMO articulated legitimate nondiscriminatory
reasons for complainant's non-selection. The agency also found that
there was no need to fill the position because employees in lower grades
had been utilized to assume the duties attributable to the position.
The agency also asserted that it has broad discretion to set polices
and carry out personnel decisions and should not be second-guessed,
absent evidence of unlawful conduct. Additionally, the agency found
that complainant's contention about the agency grooming C-1 to fill the
position was without merit because C-1 never applied for the position
or any other GS-13 position, and did not have sufficient experience to
qualify at the current time. On appeal, complainant renewed contentions
made during the investigation of his complaint. The agency requested
that we affirm its FAD.
FINDINGS AND ANALYSIS
Complainant claimed that he was discriminated against because of
his age, race, and sex when he was not selected as a Consumer Safety
Officer, GS-13. A claim of disparate treatment is examined under the
three-part analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978); Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979). The burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The record shows that complainant is member of three protected groups,
in that he is a Caucasian male over the age of 40. Further, he was
qualified for the position for which he applied, but was not selected.
The record also shows that complainant and the other two eligible
candidates were Caucasian. While complainant asserted that race may have
inappropriately been a factor in other hiring decisions in the District,
he introduced no evidence to support an inference that a similar situation
arose in the instant non-selection. Therefore, we find that complainant
failed to properly set forth an inference of race based discrimination.
The agency found that complainant did not establish a prima facie case
of race discrimination because no candidate was chosen to fill the
instant position. It also and asserted that it had broad discretion
to set polices and carry out personnel decisions and should not be
second-guessed, absent evidence of unlawful conduct. We note that
the Commission has found that where the selection process may have been
manipulated to avoid selecting an employee, the employee may have a cause
of action. In such cases, the proper focus is not on the respective
qualifications of the selectee and the complainant, but on the reasons
advanced by the agency for not filling the vacancy in the first instance.
See Perez v. Small Business Administration, EEOC Appeal No. 01962111,
(January 11, 2000); see also McDonnell Douglas Corp., supra; Burdine,
supra. Therefore, it is appropriate for for the Commission to review
the agency's reasons for not filling the vacancy.
The agency also assumed, arguendo, that complainant established a prima
facie cases of age and sex discrimination and proffered legitimate,
nondiscriminatory reasons for its action. Here, in response to
complainant's allegations challenging his non-selection, the agency found
that RMO told complainant that while his technical skills were good,
he needed to assume a greater leadership role with the Food Team and
improve his communication skills. RMO also indicated that it was the
Panel's perception that complainant did not want to be a leader, lacked
experience in violations inspections over a long period of time, and that
there was no evidence of his ability to put together a complex case.
Further, the agency argued that there was no need to fill the position
as employees in lower grades had been utilized to assume the duties
attributable to the position.
Once the agency puts forth legitimate non-discriminatory reasons for
its action, complainant may present evidence that more likely than not,
the agency's articulated reasons for its actions were pretexts for
discrimination. The Commission notes that the agency did not address
the attestation by complainant's former supervisor that a Panel member
asked if complainant had any retirement plans as �there was some concern
about selecting someone who would not be around from more than a couple
of years.� ROI, Exhibit 22, p. 2. We also note that despite requests
from complainant, the agency did not provide complainant with copies
of the Panel's note regarding its review of the applicants. As such,
this statement supports a conclusion that improper age bias impacted the
Panel's final recommendation not to select complainant for the position.
Further, through his rebuttals, complainant has shown that the Panel's
alleged concerns about his skills and performance were not supported by
the record.
In response to his asserted lack of leadership abilities, allegedly
because he relinquished his Team Leader position prematurely, complainant
indicated that he did not relinquish his responsibilities until the end of
his elected term. Further, the only duty that he did not complete in this
position was to attend a Team Leader meeting in San Antonio and that was
because RMO requested that the incoming Team Leader attend the meeting.
See Report of Investigation (ROI), Exhibit 23, p. 5. The record also
indicates it was RMO who chose C-1, complainant's younger co-worker,
to fill the Team Leader position, over the objections of at least one
team member. ROI, Exhibit 18, p. 1. We note that RMO, as complainant's
second line supervisor, was in a position to clarify the misconceptions
that the Panel was operating under on this issue, but did not do so.
The Panel also indicated that complainant lacked experience in violations
inspections over a long period of time and that there was no evidence
that complainant could put together a complex case. However, a review of
complainant's application indicated that complainant conducted hundreds of
violations inspections and related activities in the food area including
food storage warehouse, mass seizures, prosecutions, injunctions, routine
seizures and recalls. Further, complainant's application indicated that
he planned, conducted, and directed investigations on highly technical and
complex cases as early as 1978 when he completed a botulism investigation
in Clovis, New Mexico and as recently as 1996-1997 when he completed a
listeria investigation in Dallas Texas. Complainant also indicated that
he reviewed inspection reports in these related areas as well; in addition
he worked with international, federal, state, county, and city government
agencies as it related to his expertise. ROI, Exhibit 13g, pp. 4-6.
Complainant asserted that whenever there was a major food problem,
management sought him out for guidance, as did newer investigators.
Complainant also asserted that when there was highly visible work,
such as a speech or training class to be conducted, he was contacted
and would then develop and provide the needed training. ROI, Exhibit
255, pp. 11-12. Complainant's immediate supervisor's (S-1) affidavit
also buttresses complainant's assertions as S-1 indicated that when
state clients called with questions on contracts, or other problems or
concerns, he often referred them to complainant and they were always
handled appropriately. ROI, Exhibit 22, p. 2. Complainant also indicated
that under his tenure as a Team Leader, the Food Team formed formal
and informal partnership agreements with state clients which resulted
in improved efficiency and productivity within the region. Further,
complainant indicated that the Team also provided inspection and sample
collection training for different regions. Arguably then, complainant
was a person of stature as he had 25 years of relevant experience, and
remained the resource of choice whenever technical or other sensitive
issues arose. Moreover, the record shows that he was being called on
to perform most of the duties of the position he was denied in that
he planned and conducted complex investigations, reviewed inspection
and investigation reports for violations within his area of expertise,
provided extensive advisory and consultative services, developed and
conducted training to agency personnel and other federal and state
officials, and was a team leader within his area of expertise.
Complainant also asserted that no concerns were raised about his
communication skills or performance until after he applied for the
position. In support of this complainant introduced his performance
appraisal for the period he acted as Team Leader, which was signed
by S-1. This appraisal indicates that complainant received the highest
rating (Exceed) in every performance element, including leadership and
communication. ROI, Exhibit 13. Overall the panelists made assertions
about how complainant failed to provide leadership when he was a Team
Leader, but they failed to provide examples of this failure which were
supported by the record.
After a careful review of the record, we find, contrary to the agency's
conclusion, the agency's reasons are pretexts for discriminatory animus
toward complainant's age. The weight of the evidence suggests that
when the agency could not get the younger candidate of its choice, and
despite finding complainant best qualified of the remaining applicants,
it decided not to fill the position in order to allow candidates time
to pick up skills, or the time in grade they needed to better qualify
in the future. While the agency argued that there was no need to fill
the position, it appears this determination was only made after deciding
not to select complainant. Further, The agency has not shown that the
need for a GS-13 position was eliminated, only that they did not want
complainant to fill that vacancy. Therefore, we find that the agency
unlawfully discriminated against complainant because of his age.
Complainant also asserted that the agency discriminated against him
based on his sex when he was not selected and the position was not
filled because the agency sought to groom a younger female (C-1) from
the District for the position. In response, the agency contended that
complainant's claim was without merit because C-1 never applied for
the position or any other GS-13 position, and did not have sufficient
experience to qualify at the current time. While there is evidence
C-1 would have been eligible for a GS-13 in April 1998, there is
insufficient evidence to support a finding based on sex. The record
shows that initially, the agency found that another male applicant was
best qualified for the position. Moreover, all of the GS-13s hired in
the District in the two previous years were males. Further, complainant
indicated that the agency did a significant amount of hiring for GS-13
positions outside the District. Therefore, it is equally likely that
a male applicant from outside the District would be selected for a
similar GS-13 position in the future, as it would be for the female who
complainant identified within the District. Accordingly, we find that
complainant has failed to show by a preponderance of the evidence that
he was discriminated against because of his sex.
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
finding of no race or sex discrimination, and reverse the agency's final
decision on age and remand this case to the agency to take remedial
actions in accordance with this decision and Order below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall retroactively promote the complainant to the
position of Consumer Safety Officer, GS-0696-13, or a substantially
equivalent position effective from February 2, 1998.
2. The agency shall determine the amount of back pay, if any,
with interest, and any other benefits due the complainant, including
appropriate within-grade increases and career ladder promotions, if any,
under 29 C.F.R. � 1614.501, which complainant would have received had he
been selected for the position of Consumer Safety Officer, GS-0696-13. The
agency is liable for back pay until such time as the complainant is
placed as above, or declines an offer to be so placed. The agency shall
complete these actions no later than 90 calendar days of the date this
decision becomes final. The complainant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due, and provide
all necessary information the agency requests to help it comply.
3. If there is a dispute about the amount of back pay or other benefits
due, the agency shall issue a check to the complainant for the undisputed
amount within 90 calendar days of the date this decision becomes
final. The complainant may petition for enforcement or clarification of
the amount in dispute. The petition for clarification or enforcement
shall be filed with the Compliance Officer, at the address referenced
in the paragraph entitled "Implementation of the Commission's Decision."
4. The agency shall consider taking disciplinary action against the
officials identified as responsible for the decision to deny the
complainant's promotion to the Consumer Safety Officer, GS-0696-13,
position. The agency shall report its decision. If the agency decides
to take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline.
5. The agency shall provide appropriate training to the officials and
ensure that appropriate steps are taken to prevent a recurrence of the
unlawful discrimination.
6. The agency shall post the attached notice as provided below.
7. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation on the
agency officials' training, and evidence that the corrective action has
been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Dallas District Office copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
___07-25-02_______________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ________ which found that a
violation of the Age Discrimination in Employment Act of 1964, as amended,
29 U.S.C. 621 et seq. has occurred at to post at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The Food and Drug Administration's Dallas District Office supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The Food and Drug Administration's Dallas District Office was found
to have unlawfully discriminated against an employee when he was not
selected for a supervisory position within the facility. The agency shall
provide appropriate training to the responsible officials and ensure
that appropriate steps are taken to prevent a recurrence of the unlawful
discrimination, as well as place the affected employee in the position
with an award of back pay. The Food and Drug Administration's Dallas
District Office will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all Federal equal employment opportunity laws.
The Food and Drug Administration's Dallas District Office will not in any
manner restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings pursuant to, Federal equal employment
opportunity law.
______________________________
Date Posted: ___________________
Posting Expires: ________________
29 C.F.R. Part 1614