0120091975
09-17-2009
John W. Tuttle, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
John W. Tuttle,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091975
Agency No. ARBELVOIR08FEB00892
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 27, 2009 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as an Information Technology (IT) Specialist, YA-2210-02, at the agency's Project Directorate, Acquisition, Logistics and Technology Enterprise Systems and Services in Radford, Virginia.
On April 5, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the basis of age (58) when:
on February 15, 2008, he learned that he was not selected for the position of Enterprise Systems Division Chief, YC-2210-02, with the Acquisition, Logistics and Technology Enterprise Systems and Services (ALTESS), Radford, Virginia.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision on February 27, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its February 27, 2009 final decision, the agency found that complainant established a prima facie case of age discrimination because the selectee (age 50) was younger than complainant (age 58). The agency found, however, that management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
The record reflects that twenty-one candidates, including complainant, made the Web-Based Referral List for the position of Enterprise Systems Division Chief, YC-2210-02, which was referred to the selecting official (SO) for consideration. The record further reflects that the list was later narrowed down to eight candidates, also including complainant, based on rankings according to a rating matrix. The top four candidates (ages 50, 49, 45 and 37) were selected for interviews (overall scores between 16 and 23). The record reflects that one of the top four candidates had already taken a promotion and declined an interview. The record reflects the remaining three candidates were ultimately interviewed. Complainant, along with three other candidates, scored the lowest, and did not make the cutoff to be interviewed.
SO stated that he was part of the panel for the evaluation of the candidates' application packages and interview process. SO stated that the criteria for the subject position was education, experience, technology, supervisory and leadership skills. SO stated that following the interviews, he selected selectee for the subject position because he was best qualified.
Regarding complainant's assertion that he should have been ranked in the top three, SO stated "it was a highly competitive selection process. The entire list had very strong candidates. So the selection criteria that we had established in the KSAs had very strong considerations." SO stated that some of complainant's certifications and experience example "example don't relate to what we have here." Specifically, SO stated that complainant has Cisco Certified Network Associate "which is a great certification. We have no Cisco hardware here. We don't use Cisco. So unless they're applicable to what our mission is today, it's great to have those certifications, but they don't necessarily relate."
SO noted while complainant had educational background, he did not have the requisite experience. Specifically, SO stated the top candidates "have an extensive list of other types of experience other than being at ALTESS for 20 years. So they gained experience over those years in different job functions, in different categories of experience that [Complainant] did not have." SO stated that in regard to supervisory experience, "if you look at the supervisory experience on the commercial side that [selectee] and compared to what [Complainant] had, there was a difference, a difference in not only the quantity, but the quality and the types of supervision. And that would apply similarly to the leadership categories." SO further stated that longevity "doesn't drive it. It's quality of experience, the types of experience, and what they were." Furthermore, SO stated that complainant's age was not a factor in his determination to select the selectee for the subject position.
With respect to complainant's assertion that P1 approached his wife at a store several years before the selection and asked her when complainant was going to retire, SO stated that he asked P1 about it and his feeling was what exactly complainant "described earlier that there was just a point of conversation when he sees an employee's wife, how you doing, how're the kids, is [complainant] planning on retiring. He didn't think it was anything." SO further stated that the brief conversation P1 had with complainant's wife was not "related to anything that the organization was doing or implication the organization was applying, no relationship to his conversation."
P1 stated that the selectee was selected for the subject position based on his extensive supervisory experience. P1 stated although he had worked with complainant "indirectly since I've been here, I've worked directly with [the named selectee] and I knew that he had significant Oracle experience. He had significant experience in the private sector where he came from and I'm thinking that was one of the things I didn't know enough about, [complainant's] knowledge or experience at that level."
Further, P1 acknowledged seeing complainant's wife at a grocery store about one-and-a-half years to two years before the selection at issue. P1 stated that he inquired complainant's wife "on the welfare of her family and herself, as I do with the spouses of all of my employees. During the conversation, I did ask if her husband had plans to retire. It was purely an innocent conversation with no malice intent." Moreover, P1 stated that this incident "had no bearing on my ranking of any of the candidates."
On appeal, complainant, through his attorney, argues that the final agency decision was based on an incomplete investigation record. Complainant further argues that he is not appealing the final agency decision regarding his allegations of disparate treatment. Instead, complainant argues that the instant appeal is centered solely upon the agency's refusal to consider any evidence of disparate impact. Complainant makes reference to an exchange between an investigator and his attorney, wherein the attorney stated that the complaint was "a disparate impact kind of case" and that the investigator responded that this was not the manner in which he had interpreted the claim as having been accepted. Complainant argues that at the time of the filing of the instant complaint, he had "preserved his allegations of disparate impact discrimination" and made reference to a supplemental statement that was appended to the formal complaint. Therein, complainant stated that "[T]his type of age discrimination is based upon both disparate impact discrimination as well as disparate treatment." Complainant further state that the ALTESS hiring process was "inherently biased toward hiring younger, less experienced employees, and therefore engendered a biased outcome against older, more experienced employees." Complainant argues that he established that he was subjected to discrimination because he was more qualified than the selectee.
In response, the agency asserts that complainant's appeal is untimely filed. The agency further asserts that assuming that the appeal is deemed timely, the Commission should affirm its final decision finding no discrimination.
As a threshold matter, we determine that a review of the record supports a finding that the instant appeal was timely. Next, we acknowledge that complainant made reference to disparate impact in an addendum to his formal complaint, as he noted on appeal. However, based on the record before us, we find that the disparate impact claim was not accepted for processing by the agency, as reflected in its identification of the claim accepted for investigation, by letter to complainant dated April 22, 2008. In that letter, complainant was invited by the agency to clarify any claims incorrectly identified by the agency, but the Commission cannot discern in the present record a challenge of the accepted issue of the agency. Therefore, we find that the issue of disparate impact is not part of the subject complaint. Moreover, even on appeal, complainant, beyond the bare assertion of age-related disparate impact, as not fleshed out his allegations in this regard. Therefore, the "disparate impact claim" will not be addressed on appeal. As such, contrary to complainant's assertions on appeal, the Commission determines that the EEO investigation was adequate.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We note that it is questionable whether or not complainant established a prima facie case of age discrimination. Both complainant and the selectee were in their 50s, so the age difference between them was not significant. Moreover, as already detailed earlier in this decision, to the extent that any inference of age discrimination was raised, the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
In summary, and 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 (M1208)
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 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 77960, Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 17, 2009
__________________
Date
2
0120091975
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091975
7
0120091975