James T. Dills, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionJan 7, 2000
01983809 (E.E.O.C. Jan. 7, 2000)

01983809

01-07-2000

James T. Dills, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


James T. Dills v. Department of Transportation

01983809

January 7, 2000

James T. Dills, )

Complainant, )

) Appeal No. 01983809

v. ) Agency No. 95-0255

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

)

DECISION

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

concerning his complaint of unlawful employment discrimination on the

bases of sex (male) and age (52 at time of the incident), 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 he

was discriminated against when he was not selected for the position of

Supervisory Contract Specialist. The appeal is accepted in accordance

with EEOC Order No. 960.001. For the following reasons, the Commission

affirms the FAD.

The record reveals that during the relevant time, complainant was

employed as a GS-13 Contract Specialist, for the Federal Aviation

Administration at the agency's Oklahoma City, Oklahoma facility.

Complainant alleged that the Selecting Official (SO) failed to make her

selection based on experience and maturity. Instead, he maintains SO

used gender and other vague criteria in order to hire a woman for the

position. Complainant also maintains that there is a bias in the agency

toward promoting women. Believing he was a victim of discrimination,

complainant sought EEO counseling and, subsequently, filed a complaint

on February 3, 1995. At the conclusion of the investigation, complainant

requested that the agency issue a FAD.

The FAD concluded that complainant established a prima facie cases of

sex discrimination because the Selectee was female but concluded that

complainant failed to establish a prima facie case of age discrimination

because the Selectee was also over the age of 40. Notwithstanding, the

FAD concluded that the agency had provided legitimate, nondiscriminatory

reasons for its selection, namely that the Selectee (46 years old) was

found to be better qualified than the complainant. The record shows that

the selection process consisted of a review of the SF-171's, personal

knowledge of the candidates and supervisory/managerial assessments.

Based on an analysis of the selection process the record demonstrates

that the Selectee scored higher than the complainant in all categories

considered except the acquisition process, where they were both considered

very knowledgeable. Further, the record shows that the Selectee scored

higher with regard to attitude than the complainant. The FAD also

maintained that there was no preselection, as all four applicants were

judged under the criteria stated above.

On appeal, complainant contends that the agency failed to consider that

the statistical data must show that for upper grade promotions there is a

bias toward female applicants. The agency requests that we affirm its FAD.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), and Loeb v. Textron, 600 F.2d 1003

(1st Cir. 1979), the Commission disagrees with the agency that complainant

failed to establish a prima facie case of age discrimination. The

Commission wishes to clarify that in a case alleging discrimination under

the ADEA, complainant can establish a prima facie case of discrimination

by showing that: (1) he is at least forty years old; (2) he was qualified

for the position; (3) he was not selected for the position; and (4) he

was accorded treatment different from that given to a person otherwise

similarly situated who is not a member of his protected groups or is

considerably younger that he. See O'Connor v. Consolidated Coin Caterers

Corp., 517 U.S. 308 (1996); and Terrell v. Department of Housing and Urban

Development, EEOC Appeal No. 01961030 (October 25, 1996). The ultimate

burden remains on complainant to demonstrate, by a preponderance of the

evidence, that age was a determinative factor in the sense that, "but for"

his age, he would not have been subjected to the action at issue. Loeb

v. Textron, 600 F.2d 1003 (1st Cir. 1979); and Fodale v. Department of

Health and Human Services, EEOC Request No. 05960344 (October 16, 1998).

Based on these principles of law, we conclude that complainant established

a prima facie case of age discrimination because he was over forty

years of age, was qualified for the position, and was not selected

for the position in favor of a younger employee. However, we note that

complainant fails to prove that the agency's legitimate, nondiscriminatory

reasons for its selection were a pretext for discrimination. Complainant

presented no credible evidence that age was a determinative factor in

SO's selection of the Selectee since the Selectee as well as all of the

other applicants were also over the age of 40. With regard to the claim

of sex discrimination, the Commission agrees that complainant established

a prima facie case of sex discrimination but we find that the agency

articulated legitimate, nondiscriminatory reasons for its actions. In

reaching this conclusion, we note that the record reveals that three male

Division Managers were involved in evaluating the applicants and they

all choose the Selectee over the complainant. The SO simply concurred

with their assessment. 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. As for

complainant's claim that there is a trend toward promoting women in to

the higher GS positions, the record reveals that from 1993 to 1996, SO

promoted five women, however only two of the five selections were for

managerial positions. Further, based on a review of staffing records

for the Office of Acquisition, we find that there are eight males at

the GS-13 level or above and five females at the GS-13 level or above.

As such, complainant has not established that a bias towards women exists.

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:

January 7, 2000

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.