0120091920
08-25-2009
David A. Rose, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
David A. Rose,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120091920
Agency No. APHIS-2005-00837
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 5, 2009 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Supervisory Accountant, GS-510-13, at the agency's Animal and Plant Health Inspection Service, Market and Regulatory Program Business Services, Washington Financial Services Branch (WSFB) in Washington D.C. 1
On July 11, 2005, complainant filed the instant formal complaint. Therein, complainant claimed that the agency discriminated against him on the bases of sex (male) and age (over 40) when:
on February 18, 2005, his supervisor failed to rotate him as Acting Branch Chief, WSFB, and subsequently denied him the same opportunity to compete for the position as a co-worker.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision on February 5, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its February 5, 2009 final decision, the agency found no discrimination. Specifically, the agency found that complainant did not establish a prima facie case of sex and age discrimination because he did not identify any similarly situated employee, not in complainant's protected groups, who was treated differently under similar circumstances. The agency further found assuming, arguendo, complainant established a prima facie case of sex and age discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
Complainant's supervisor (S1) stated that during the relevant time, complainant was responsible for financial statements, general ledger accounts and research related to posting models. S1 stated that the Acting Branch Chief GS-14 position was vacant from May 2001 to April 2006. S1 further stated that the rotational assignments for the subject position began in 2004, and was open to all eligible individuals in the WFSB. S1 stated that she sent an email to all individuals who were eligible and asked them if they were interested in filling the acting role. S1 stated that three individuals, including complainant, responded and "all three individuals were rotated." S1 stated that all three individuals completed "at least one rotation and [a named employee] was the employee in the last rotation and I kept her in the acting chief role until the position was announced." S1 stated that at that time she did not have a written agreement "regarding the rotations; I believe I just talked with the individuals that were interested. The understanding was that the position would be rotated for six weeks or four weeks, I think it was four weeks. At the time when I decided to discontinue the rotations, I did have a discussion with the complainant." S1 stated that a named employee had taken himself out of consideration and decided he did not want to rotate anymore. S1 stated that she decided not to rotate the subject position any longer "because the paperwork had begun and the process had started with human resources (HR) to announce the position supported, I thought I was in the agency's best interest to have some consistency to the person being in that position or the role of the position and not turn it over frequently."
S1 stated that all three individuals, including complainant, who had rotated in the subject position had received a temporary promotion. S1 stated that the subject position was announced competitively and after the position was filled, complainant inquired as to why he had not been interviewed. S1 stated "I informed the complainant that I did not receive his application and was not aware that he had applied for the position." S1 stated that when she contacted Human Resources concerning complainant's application, she learned that complainant "submitted a partial application and did not submit a resume, a required document for the announcement. I relayed what HR told me back to the complainant and suggested that he talk with HR." Furthermore, S1 stated that she did not discriminate complainant based on his sex and age.
A claim of disparate treatment is examined under the three-party 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 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, 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 has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. On appeal, complainant has provided no persuasive arguments indicating any improprieties in the agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960, Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 25, 2009
__________________
Date
1 The record reflects that on March 1, 2007, complainant retired from agency employment.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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