Darryl H. Milburn, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 26, 2000
01a51232 (E.E.O.C. May. 26, 2000)

01a51232

05-26-2000

Darryl H. Milburn, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Darryl H. Milburn v. Department of Veterans Affairs

01A51232

May 26, 2005

.

Darryl H. Milburn,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A51232

Agency No. 200N-0612-2003102943

DECISION

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 the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a Supervisor, GS-7. Complainant sought EEO counseling and

subsequently filed a formal complaint on July 29, 2003, alleging that

he was discriminated against on the bases of race (African-American),

national origin (African descent), sex (male), and age (born May 29,

1964) when from 2000 through the present, management denied complainant

a promotion and compensation to the GS-9 level.

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. When

complainant failed to respond within the time period specified in 29

C.F.R. � 1614.108(f), the agency issued a final decision.

As a preliminary matter, we note that we review the decision

on an appeal from a final agency decision de novo. 29 C.F.R. �

1614.405(a). Accordingly, we have carefully reviewed the entire record

before us in our attempt to discern whether a preponderance of the

evidence warrants a modification of the agency's ruling. See 29 C.F.R. �

1614.405(a).

In a claim such as the instant one which alleges disparate treatment, and

where there is an absence of direct evidence of such discrimination, the

allocation of burdens and order of presentation of proof is a three-step

process. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

142 (2000) (applying the analytical framework described in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA disparate

treatment claim). First, complainant must 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. Kimble

v. Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001).

The burden of production 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 articulated such a reason, the question becomes whether the

proffered explanation was the true reason for the agency's action, or

merely a pretext for discrimination. St. Mary's Honor Center v. Hicks,

509 U.S. 502, 511 (1993). Although the burden of production may shift,

the burden of persuasion, by a preponderance of the evidence, remains

at all times on complainant. Burdine, 450 U.S. at 256.

In an investigative affidavit, complainant contended that two older

white females with the same position description as he were promoted

to the GS-9 level. The two comparatives were 55 and 50 years of age at

the time of complainant's testimony.

In an affidavit, complainant's second-line supervisor responded that

complainant was not promoted to GS-9 because his immediate supervisor,

who was promoted to GS-11 one year ago, continues to perform many of her

former GS-9 tasks because complainant fails to perform all the duties

of his position. The second-line supervisor further stated that the

two comparatives were not under her supervision.<1>

As an initial matter, we first note that complainant was under 40 years

old when he filed the instant complaint. The Age Discrimination in

Employment Act provides that all personnel actions taken by a federal

agency with regard to an employee, who is at least forty (40) years

old, "shall be made free from any discrimination based on age." 29

U.S.C. sect; 633a; See also 29 C.F.R. 1614.103(a) (processing of

discrimination complaints from aggrieved individuals "at least 40 years

of age"). Consequently, although the agency addressed the merits of

complainant's age discrimination claim, we find that complainant failed

to state a claim of age discrimination.

We also find that complainant failed to establish prima facie cases of

age, sex, or national origin discrimination. In so finding, we note that

the record reveals that the two comparatives cited by complainant were not

similarly situated to complainant because they were not supervised by the

same individual as complainant. Complainant provided no further evidence

from which an inference of age, sex, or national origin discrimination

could be established.

We further find that the agency provided legitimate, non-discriminatory

reasons for not promoting complainant to GS-9 that were not persuasively

rebutted by complainant as pretext for unlawful discrimination.

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 FAD.

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 (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

_May 26, 20005_________________

Date

1In fact, the supervisor maintained that she did not recognize the name

of one of complainant's comparatives.