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.