Gene E. Thomas, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMar 1, 2000
01992712 (E.E.O.C. Mar. 1, 2000)

01992712

03-01-2000

Gene E. Thomas, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Gene E. Thomas, )

Complainant, )

) Appeal No. 01992712

v. ) Agency No. 95-4188R

)

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision

concerning his complaint of unlawful employment discrimination on

the bases of race (Caucasian), color (White), and age (Date of Birth:

9/11/35) in violation of Title VII of the Civil Rights Act of 1964,

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<1>

Complainant alleges that the agency discriminated against him when

he was not selected for the Equal Employment Opportunity Specialist

(Specialist) position. The appeal is accepted pursuant to pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

For the following reasons, the Commission AFFIRMS the FAD.

ISSUE PRESENTED

The issue on appeal is whether the agency discriminated against the

complainant on the above bases when it did not select complainant for

the Specialist position.

BACKGROUND

The record reveals that during the relevant time, complainant was

a retired United States Army EEO Specialist. The agency's Denver,

Colorado Mint facility published a vacancy announcement from May

4, 1994 through June 2, 1994. Complainant timely applied for the

Specialist position. After a few months delay in selecting applicants,

the agency only interviewed four applicants. Complainant was not one

of the selected interviewees. Complainant alleged that he was not

interviewed or selected for the position because of his race, color,

and age, although he was on one of the best qualified lists.<2> The

agency tentatively selected applicant number nine (TS) for the position.

TS did not accept the position. The agency reannounced the vacancy in

October 1994.

Believing he was a victim of discrimination, complainant sought EEO

counseling, and subsequently, he filed a complaint on January 24, 1995.

At first, the agency dismissed the complaint on the grounds that the

complaint failed to state a claim. The complainant appealed FAD 1 to

the Commission. The appellate decision remanded the complaint to the

agency for an investigation.<3>

At the conclusion of the investigation, complainant requested that

the agency issue a final agency decision. The agency issued FAD 2 on

January 25, 1999. FAD2 concluded that complainant established a prima

facie case of race, color, and age discrimination when he demonstrated

that similarly situated employees not in his protected classes were

treated differently than him under similar circumstances. However, FAD

2 asserted that the complainant failed to show the agency's articulated

reasons for his nonselection were a pretext for discrimination.

On appeal, complainant contends that the agency was deceptive during

the hiring process because it was motivated by discriminatory animus.

The agency requests that we affirm FAD 2.

ANALYSIS AND FINDINGS

In the absence of direct evidence, a claim of discrimination is examined

under the three-part analysis originally enunciated in McDonnell Douglas

Corporation v. Green. 411 U.S. 792 (1973). Loeb v. Textron, Inc.,

600 F.2d 1003 (1st Cir. 1979) (applying the McDonnell Douglas three-part

analysis to age discrimination cases). 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. Id. 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

action. 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). In cases where the

complainant alleges age discrimination, the complainant must establish

that age was a determinative factor in the sense that �but for� his age,

the complainant would not have been subjected to the action at issue.

See Loeb, supra.

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether he has demonstrated by

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717

(1983).

In this case, the Commission finds that the agency has articulated

legitimate, nondiscriminatory reasons for its action. Specifically, the

agency stated that it wanted to hire an applicant with current specialized

EEO experience. Accordingly, it created two lists of candidates with this

experience. While complainant was on one of the certificates, he did not

demonstrate the current level of EEO experience that the agency needed.

He had been retired from the EEO field for approximately six years.

The other candidates who were interviewed were current EEO managers

or specialists. The agency believed these candidates had up to date

knowledge of the changing EEO regulations and recent court decisions.

This current experience was important to the agency due to the extreme

backlog of discrimination cases in the Denver, Colorado Mint EEO office.

Just as importantly, the agency did not have the time or resources to

train someone without specialized EEO experience or to bring a former

EEO specialist up to date in the EEO field. As a result, complainant

was not selected for an interview.

The Commission finds that complainant failed to present evidence that,

more likely than not, the agency's articulated reasons for its actions

were a pretext for discrimination. In reaching this conclusion, we

note that the agency interviewed other applicants in the complainant's

protected classes (Caucasian, White, and over 40 years of age). The

agency interviewed those applicants with the most current EEO training

and experience.

CONCLUSION

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 (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

03/01/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________ _______________________________

Date Equal Employment Assistant 1 On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding

the present appeal. The regulations, as amended, may also be found

at the Commission's website at WWW.EEOC.GOV.

2 The agency created two lists of candidates. The first list, the

competitive placement certificate, included applicants who had not

achieved the GS-12 grade level. The Specialist position would be a

promotion for these six individuals. The second list, the non-competitive

placement certificate, included complainant and other applicants who

had achieved the GS-12 grade level. The Specialist position would be

a lateral move for these seven individuals.

3 See EEOC Appeal No. 01956108 (June 12, 1996), request for

reconsideration denied, EEOC Request No. 05960720 (March 26, 1998).