James Brown, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency

Equal Employment Opportunity CommissionJul 14, 2000
01971688 (E.E.O.C. Jul. 14, 2000)

01971688

07-14-2000

James Brown, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency


James Brown v. Department of Veterans Affairs

01971688

July 14, 2000

James Brown, )

Complainant, )

) Appeal No. 01971688

v. ) Agency No. 94-1371

) Hearing No. 150-95-8223X

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency )

)

DECISION

Complainant timely initiated an appeal from a final agency decision (FAD)

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the basis of age (40), in violation of

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. �621 et seq.<1> Complainant alleges he was discriminated

against when he was not selected for the position of Operations Foreman

on or about January 24, 1994. The appeal is accepted 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 agency's decision is AFFIRMED.

The record reveals that during the relevant time, complainant was employed

as a Utility Systems Operator at the agency's James A. Haley Hospital in

Tampa, Florida. Complainant applied for the vacant Operations Foreman

position in January, 1994, included statements regarding his experience

and qualifications for the position, and was referred to the Chief of

Engineering Service as being eligible for the position. He was advised

that the applicants' records and information provided by them in Employee

Supplemental Qualifications Statements addressing the basic elements of

the job would be the basis for selection, and that no interviews would

be held. Complainant was informed on or about January 24, 1994, that

another candidate was selected as the Operations Foreman (age 34).

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a formal complaint on April 21,

1994. At the conclusion of the investigation, complainant was provided

a copy of the investigative report and requested a hearing before an

EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a

Recommended Decision (RD), finding no discrimination. Employing the

analyses set forth in Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981) and McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), the AJ concluded that while complainant demonstrated a prima

facie case of discrimination on the basis of age, the agency established

a legitimate, nondiscriminatory reason for not selecting complainant,

as although he and the selectee were equally qualified for the Operations

Foreman position, selectee was chosen primarily due to his more aggressive

managerial style. The AJ then concluded that based on the testimony

of the Recommending Official (RO), the Selecting Official (SO) and the

applicants' records, complainant failed to demonstrate that the agency's

articulated reason for its action was a pretext for age discrimination.

The AJ found that complainant failed to establish that his qualifications

to perform the Operations Foreman position were �plainly superior� to

those of the selectee, or that remarks made by the RO which could be

interpreted as referring to selectee's age were sufficient to establish

discriminatory animus. Further, the AJ concluded that an e-mail message

which could indicate that the selectee was preselected for the position

prior to January 20, 1994, was inconclusive and, thus, insufficient to

demonstrate discrimination by the agency.

The agency's FAD adopted the findings of the AJ. Neither the agency

nor complainant have made new arguments on appeal. The agency stands

on the record and requests that we affirm its FAD.

After a careful review of the record, the Commission finds that the

AJ's RD summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We agree with the AJ's finding

that while the complainant established a prima facie case of age

discrimination, as he and the selectee were equally qualified for the

position but management chose the selectee due to his management style,

the agency articulated a legitimate, nondiscriminatory reason for its

action. Burdine, supra. We have held that a selecting official may

use discretion in choosing between equally qualified candidates, and the

trier of fact should not substitute his/her judgement for a legitimate

exercise of managerial discretion. Burdine, supra; Parry v. USPS,

EEOC Appeal No. 01965299 (August 24, 1998). We further agree with the

AJ's conclusion that based on a review of the record, complainant failed

to demonstrate that his qualifications were plainly superior to those of

the selectee, or that remarks made by the RO which could be interpreted

as referring to selectee's age or the internal e-mail establish pretext

for age discrimination on the part of the agency. See St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993). We thus discern no basis to disturb

the AJ's findings of no discrimination which were based on a detailed

assessment of the record and the credibility of the witnesses. Therefore,

after a careful review of the record, including evidence not specifically

discussed in this decision, the Commission AFFIRMS the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 14, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.