01A12646
08-02-2002
Donald R. McDole, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.
Donald R. McDole v. Department of Justice
01A12646
August 2, 2002
.
Donald R. McDole,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Immigration and Naturalization Service),
Agency.
Appeal No. 01A12646
Agency No. I99WO86
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 Supervisory Special Agent, GS-1811-13, at the Boise Sub-Office,
Helena District Office in Boise, Idaho. Complainant sought EEO counseling
and subsequently filed a formal complaint on April 20, 1999, alleging
that he was discriminated against on the bases of his sex, age (date of
birth: December 4, 1949), and reprisal (for prior EEO activity) when:
(1) On or about December 16, 1998, he was informed that he was not
selected for the position of Supervisory Criminal Investigator,
GS-1811-13, advertised under vacancy announcement MSPII-98-LOS-313,
in Los Angeles, California; and,
On or about December 16, 1998, he was informed that he was not selected
for the position of Supervisory Criminal Investigator, GS-1811-13,
advertised under vacancy announcement MSPII-98-LOS-312, in Ventura,
California.
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
initially requested a hearing before an AJ, but subsequently withdrew
this request, and asked the agency issued a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of age discrimination. The FAD noted that it is likely that
the selectees would be considered sufficiently younger than complainant
for purposes of establishing an inference of discrimination. However,
the FAD found that the agency articulated a legitimate, nondiscriminatory
reason for its action. Specifically, complainant was not selected
because of management's perception that complainant did not possess a
strong work ethic. The FAD considered complainant's allegation that the
agency's reason is pretextual and that he is �significantly more qualified
than either of the two selectees.� The FAD concluded that complainant
failed to show that his qualifications were plainly superior to those
possessed by either selectee. The FAD also noted that complainant
failed to show that his age was the determining factor in management's
decisionmaking process.
The FAD also found that complainant established a prima facie case
of sex discrimination. The FAD addressed complainant's argument that
the agency's reason was pretextual, and that one of the selectee's was
�close� with a selecting official, but found that complainant did not
establish that he was not selected because of the selecting official's
(S1) discriminatory animus toward him because he is male. The FAD
also notes that the selectee for vacancy announcement MSPII-98-LOS-313
was male, and therefore, the record does not support complainant's
allegation of sex discrimination. As to reprisal, the FAD found that
complainant failed to establish a prima facie case because he did not
establish that management was aware of his prior EEO activity, nor that
a nexus exists between the protected activity and the adverse treatment
he allegedly received.
On appeal, complainant makes the following principal arguments:
Although the Recommending Official (R1)<1> indicates that he arrived
at the conclusion not to consider complainant because of his work ethic
based on his conversations with complainant's colleagues and his recent
dealing with the Boise office (in which complainant is a supervisor),
R1, in fact, had no dealings with the Boise office until long after the
selection had been made.
It is improper to consider the affidavits of the management officials
because they are unsigned, and unsworn.
The agency requests that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a).<2>
Age Discrimination
Under the ADEA, it is "unlawful for an employer ... to fail or refuse to
hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision." Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen
Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). "That is, [complainant's]
age must have actually played a role in the employer's decisionmaking
process and had a determinative influence on the outcome." Id.
In disparate treatment cases such as the instant appeal, where there is an
absence of direct evidence of discrimination, the allocation of burdens
and order of presentation of proof is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); see also Reeves, 530
U.S. at 142 (applying McDonnell Douglas analysis to ADEA claim). Under
this analytic framework, complainant must first establish a prima facie
case of unlawful age discrimination--that complainant was a member of
a protected class of individuals under the ADEA; that he or she applied
for and was otherwise qualified for the position; that despite his or her
qualifications complainant was rejected; and that the agency subsequently
selected someone for the position who was substantially younger than
complainant. Reeves, 530 U.S. at 142; O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308, 312-13 (1996); McDonnell Douglas, 411
U.S. at 802. We note that it is not necessary for complainant to rely
strictly on comparative evidence in order to establish an inference
of discriminatory motivation necessary to support a prima facie
case. O'Connor, 517 U.S. at 312; EEOC Enforcement Guidance on O'Connor
v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4
(Sept. 18, 1996). However, the ultimate burden of persuading the trier
of fact that the agency intentionally discriminated against complainant
remains at all times with complainant. Reeves, 530 U.S. at 143 (quoting
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Applying this analysis to the instant case, we find that complainant
has established a prima facie case of discrimination based on age.
Once complainant has established a prima facie case, the burden shifts
to the agency to "produce evidence that [complainant] was rejected,
or someone else was preferred, for a legitimate, nondiscriminatory
reason." Reeves, 530 U.S. at 142 (quoting Burdine, 450 U.S. at 254).
The agency met its burden by stating that management perceived complainant
as not possessing a strong work ethic. See Report of Investigation
(ROI), Affidavit of D1, p. 5.
In an attempt to establish pretext, complainant contends that he was told
that one interviewer (I1) stated that because complainant had previously
declined a supervisory position in the Laguna Niguel office, he would
not be considered or selected for any position in the LA District
Office. Additionally, complainant points out that he was only asked
five questions, and management would not answer his requests to know
how many questions were asked of the selectees. While complainant has
presented several challenges to the agency's reasons for his nonselection,
he has presented insufficient evidence to support an inference that the
selection process was tainted with discriminatory animus against him
based upon his age.
Sex Discrimination
We find that complainant established a prima facie case as to issue
(2) in that complainant qualified, but not selected for the position
in question, while a female was selected. However, the agency has
articulated aformentioned legitimate, nondiscriminatory reasons for this
action. In an attempt to establish that the agency's reasons are pretext
for sex discrimination, complainant contends that S1 has a preference
for hiring women. Complainant contends that the female selectee and
the selecting official are �close.� In addition, complainant contends
that a Supervisory Special Agent in the Santa Ana Sub-Office told him
that a female employee in his office displayed a sign which indicated a
preference for women in the workforce, and S1 saw it, stated that she
liked it, and that it was true. ROI, Ex. F2. We are not persuaded,
however, by a preponderance of the evidence, that the agency's reasons
are pretext for sex discrimination.
Reprisal Discrimination
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000). In the instant case, we find that complainant
has not established a nexus between the protected activity and the
adverse treatment.
Therefore, based on a complete examination of the evidence of record, we
conclude that complainant has not presented sufficient evidence to prove
that the agency's articulated reasons for his nonselection were pretext
for sex, age or reprisal discrimination. Accordingly, as complainant
has failed to carry his burden of proving that the agency unlawfully
discriminated against him on the alleged bases, we AFFIRM the agency's
finding of no discrimination.
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
August 2, 2002
__________________
Date
1 The record reveals that R1 was the Assistant District Director,
GS-1811-15.
2 We have considered complainant's argument that the investigative record
is defective because several of the management officials' affidavits
are unsigned and unsworn. Complainant was provided a copy of the
investigative record upon completion of the investigation. At such
time, complainant was afforded the right to request a hearing before
an Administrative Judge or request a final decision by the agency.
Complainant failed to bring any inadequacies to the attention of the
agency, as this was the appropriate time to do so, nor did he request
a hearing. Complainant thereby deprived himself of the opportunity
to correct and cure any investigative defects in the record, and/or
supplement the record with further evidence through the hearing process.
However, even taking into consideration the fact that the affidavits are
unsigned and unsworn, we find that the weight of the evidence indicates
that complainant was not discriminated against on the alleged bases.