01981860
09-27-2000
James W. Waters, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
James W. Waters v. Department of the Navy
01981860
September 27, 2000
.
James W. Waters,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No.01981860
Agency No. 96-62285-002
Hearing No.100-97-7442X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.<1>
Complainant filed a complaint in which he claimed that the agency
discriminated against him on the bases of race (black) and age (53) by
not selecting him for the position of lead police officer on November
3, 1995. The agency investigated the complaint and referred it to an
Administrative Judge (AJ), who recommended a finding of no discrimination.
The agency adopted the AJ's recommendation as its final decision, from
which complainant now appeals.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Although this
test developed in the context of Title VII, it also applies to claims
brought under the ADEA, except that appellant must prove that his age
was the determining factor in the agency's action. Hazen Paper Company
v. Biggins, 507 U.S. 604, 610 (1993); Raby v. Department of the Treasury,
EEOC Request No. 05960549 (August 20, 1998).
Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case
will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n. 14. In this case, the record reflects
that complainant and eleven other candidates applied for the position
in question. Their applications were reviewed by a 4-member assessment
panel to determine which candidates were the best qualified. Nine of
the twelve candidates were black, and five were over the age of forty.
Three of the twelve were referred for selection, all of whom were black
and under forty. Of these, the two candidates with the highest scores
were selected. Complainant was not among the three candidates referred
for selection. Accordingly, we find that he has established a prima
facie case of discrimination on the basis of age, but not race.
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). The agency's articulated
reason for not selecting complainant for the position is that his
ratings by the review panel were not high enough to justify forwarding his
application to the selecting official. This assessment is borne out by the
rating forms completed by all four review panel members. Complainant was
given low scores by all four panelists. Investigative Report, pp. 111-14.
Thus, the reason given by the agency for not selecting complainant for
the position in question is legitimate, nondiscriminatory, and fully
supported by the record.
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is pretextual. St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995). Although complainant
claims that the police chief made a statement in 1992, to the effect that
complainant would never be promoted, there are no indications in the
record that the chief had any input into or influence on the selection
process. Complainant has not presented any evidence that challenges the
validity of the assessments made by the panel members, or which undermines
the credibility of its witnesses. We therefore find that complainant has
failed to prove that his nonselection resulted from age discrimination.
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 (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:
Carlton M. Hadden, Director
Office of Federal Operations
09-27-00
Date
.1On 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 29 C.F.R. Part
1614 in deciding the present appeal. The regulations, as amended, may
also be found at the Commission's website at www.eeoc.gov.