0120092174
07-24-2009
James A. Jaqua, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
James A. Jaqua,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092174
Agency No. 200J-0607-2008103580
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's March 30, 2009 final decision concerning his equal employment opportunity (EEO) complaint claiming employment discrimination in violation of 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 Washer Operator, WG-5, at the agency's Environmental Management Services, William S. Middleton Memorial Veterans Hospital in Madison, Wisconsin.
On August 20, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the basis of age (55) when:
on June 23, 2008, he received notification of his non-selection for the position of Pipefitter, WG-10, advertised under Promotion Announcement Number 08-138
At the conclusion of the investigation, complainant was provided with a copy of the 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 pursuant to 29 C.F.R. � 1614.110(b).
In its March 30, 2009 final decision, the agency found no discrimination. The agency determined that complainant established a prima facie case of age discrimination. The agency, however, found that management articulated legitimate, nondiscriminatory reasons for the non-selection which complainant failed to show were a pretext.
The record reflects that eight candidates applied for the subject position. The record further reflects that four candidates, including complainant, were found to be qualified and were referred to the selecting official (SO) for consideration. SO stated that he interviewed the four qualified candidates by asking each of the candidates the same interview questions. SO stated that he chose the selectee because he "was better qualified and was rated higher during the performanced based interview process." The record reflects that the selectee received the highest score of 97 points while complainant was ranked third with a score of 79. The record reflects that according to the EEO Investigator, SO stated that he chose the selectee "based on his superior experience and qualifications, to include certification by the state in Refrigeration and HVAC (Heating, Ventilation & Air Conditioning) and repair and maintenance of fire suppression and sprinkler systems." Furthermore, SO stated that complainant's age was not a factor in his determination not to select him for the subject position.
The Customer Service Specialist (Specialist) stated that he served as an observer during the interview process and insured that procedures were followed. The Specialist further stated that the interview questions "were Performance Base Interviewing which dealt with qualifications + past performance + experience." The Specialist stated that SO selected the selectee because "he scored the highest on the questions asked + had more experience + licenses in the trade."
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. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Complainant, on appeal, has not provided any persuasive argument regarding the propriety of the agency's finding of no discrimination. Complainant asserts that the selecting official made numerous subjective comments on the margins of the document where he ranked applicants' responses; that interpretations and ranking of responses to interview questions can be extremely subjective; and that it would be easy for someone to simply rank someone if the selecting official preferred to hire one applicant over another. The Commission determines, however, that the record does not support a finding that the articulated reasons advanced by the agency for choosing the selectee were a pretext for discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the record evidence 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
July 24, 2009
__________________
Date
2
0120092174
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013