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.