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.