01970189
02-25-2000
Kenneth C. Brown, Complainant, v. Louis Caldera, Secretary, Department of the Army (National Guard Bureau), Agency.
Kenneth C. Brown v. Department of the Army
01970189
Feb. 25, 2000
Kenneth C. Brown, )
Complainant, )
)
v. ) Appeal No. 01970189
) Agency No. T-0306-TN-A-05-96-AH
Louis Caldera, )
Secretary, )
Department of the Army )
(National Guard Bureau), )
Agency. )
)
DECISION
On October 7, 1996, the complainant initiated an appeal from a
final decision of the agency dated September 25, 1996 concerning
his complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq., and �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. The appeal is timely (see
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified as 29 C.F.R. �
1614.402(a)), and is accepted under 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified as 29 C.F.R. � 1614.401(a)).<1>
ISSUE PRESENTED
Whether the complainant was discriminated against on the bases of his
age (born October 25, 1940) and disabilities (various) when he was not
selected for promotion in October 1995 for the position of Support
Services Specialist, GS-7.
BACKGROUND
The complainant filed an EEO complaint alleging the above issue.
Following an investigation, which included sworn testimony that was
transcribed, the agency notified the complainant of his right to a
hearing. The complainant requested a final decision without a hearing,
and the agency found no discrimination.
The complainant applied for the position of Support Services Specialist,
GS-7. The incumbent was responsible for pay, administration and training
for soldiers, and supplies for soldiers and the Commander, and also
performed other duties, such as recruiting and fund raising at the unit,
not Squadron level.
Four applicants, including the complainant, were interviewed for
the job in October 1995. The interviews were jointly conducted by
an Administrative Officer (AO) and a Training Officer. A Personnel
Sergeant was at the interviews to serve as an observer and to address
issues that may arise. Since assuming the AO position in May 1995, the
AO was a superior of the complainant and the individual who was selected
(Selectee, born May 15, 1955).
The AO recommended the selectee. The Regimental Administrative Officer
(RAO) was the AO's supervisor and approved the recommendation. The AO
testified that he and the RAO were especially looking for someone who
was strong in supply and someone at the unit level. The AO explained
the unit had millions of dollars in equipment and repair parts and the
job ran the day to day functions of the unit for the Commander. The AO
added that the unit level is where the soldier is paid, the equipment
is located, the supply activity occurs, and the reports are generated,
and the Squadron level is where reports are passed on and things are
consolidated. The AO stated that the selectee had supply experience at
the unit level and was recognized as the best supply sergeant within
the Squadron. The AO also stated that in making his recommendation,
he considered performance, and the selectee was a self-starter who could
work independently and always completed his reports and work on time.
The AO noted that the complainant worked at the Squadron level. The AO
testified that the complainant performed adequately because a Senior
Non-Commissioned Officer (NCO) was there to make sure that his work
was correctly done. The AO testified the complainant had no specific
problems in his current job. The AO also testified that previously, the
complainant worked as a Support Services Specialist at the unit level,
but was reduced and moved to the Squadron level after being involved in
the misappropriation of government funds, and this latter matter weighed
in his decision. The AO indicated that the RAO had previously informed
him of this.
The record reflects that the complainant served as a unit Support
Services Specialist, GS-7, from September 1984 to December 1989,
and thereafter worked at the Squadron level as a Supply Clerk, GS-5.
The complainant affirmatively checked a box in his application which
asked whether in the last 10 years he was "fired from any job," "quit
after being told that you would be fired," or left by "mutual agreement"
due to a specific problem. The complainant's application indicated this
applied to the Support Services Specialist job, and involved a conflict
with his supervisor over unit operations and the conduct of business.
The RAO testified that had the complainant been recommended for selection,
he would have rejected it. The RAO explained that the complainant
was demoted for disobeying a direct order and presenting himself as a
purchasing agent for the State of Tennessee when he was not authorized
to do so.
With regard to the complainant's physical condition, the record contains
a Department of Veterans Affairs rating decision which denied claims for
a service connected lung condition and rash due to an undiagnosed illness
and a 10% evaluation based on multiple, noncompensable, service-connected
disabilities; and found that the complainant had service connected right
shoulder glenoid dysplasia with no "0%" disability effective January 31,
1995 and no "0%" disabling bilateral hearing loss. The complainant
testified that one of his claims that was found to be noncompensable
involved his arm which had been fractured twice in the same place
and a degenerating shoulder. The complainant did not testify to any
limitations.
On appeal, the complainant argues that he was discriminated against.
ANALYSIS AND FINDINGS
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) provides
the analytical framework for proving employment discrimination in
cases in which disparate treatment is alleged and no direct evidence of
discrimination has been presented. Although McDonnell Douglas is a Title
VII case, its analysis is also applicable to disparate treatment cases
brought under the Rehabilitation Act and the ADEA. See, respectively,
Prewitt v. U.S. Postal Service, 662 F.2d 292, 305 n. 19 (5th Cir. 1981)
and Sutton v. Atlantic Richfield Co., 646 F.2d 407, 411 (9th Cir. 1981).
McDonnell Douglas requires the complainant to first establish a prima
facie case. If the complainant succeeds, the agency's burden then is
to articulate some legitimate, nondiscriminatory reason for its action
in order to rebut the prima facie case of discrimination. Finally,
the complainant has the opportunity to show, by a preponderance of the
evidence, that the agency's stated reason is a pretext for discrimination.
The ultimate burden of proof that discrimination took place is on the
complainant. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). Under the ADEA, the complainant must establish
that age was a determining factor in the agency's action against him.
Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993).
Since the agency articulated legitimate, nondiscriminatory reasons
for not selecting the complainant, as set forth below, we may proceed
directly to whether he demonstrated by a preponderance of the evidence
that the agency's reason was merely a pretext to hide discrimination.
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983).
The agency explained that it chose the selectee because he was the best
qualified applicant for the job in that he had the right experience and
was a good performer. It further explained that the complainant had an
integrity problem in a previous job.
The complainant argued that these reasons were pretext to mask
discrimination. The complainant contends that at the interview the AO
asked how many years the complainant had until retirement, and commented
on this matter. According to the counselor's report, the counselor
questioned the AO about why he asked the complainant how much time he had
until retirement, and the AO replied for clarification purposes. A union
steward, who conducted an informal investigation pursuant to grievance
proceedings testified that when he asked the AO why he raised age at
the complainant's interview, the AO replied for clarification purposes.
When asked about the counselor's report, however, the AO stated it
was mistaken. The AO testified that he did not ask the complainant how
much time he had remaining until retirement or any specific question
regarding age. According to the AO, the complainant stated how much
time he had left until retirement in response to the AO's introductory
question to the complainant to say something about himself and why he was
interested in the job. This account is corroborated by the testimony of
the Training Officer, who also testified that he did not hear a question
about age nor recall the AO asking the complainant about years remaining
until retirement.
Given the direct testimony of the AO and the Training Officer, we find
the complainant has failed to establish that the AO asked him about his
age or years left until retirement in the interview.
With regard to the complainant's disability claim, the record reflects
that for question 22 of his application (regarding veteran's preference),
the complainant checked a box indicating "non-compensably disabled or
Purple Heart recipient." According to the counselor's report, when the
counselor questioned the AO regarding why he asked the complainant about
"his completion of Section 22 of the [application], regarding physical
handicap," the AO replied to get "clarification" of that section.
The AO confirmed this portion of the counselor's report.
The AO explained, however, that he asked the complainant about whether
he got a Purple Heart award. The Training Officer testified that the
AO asked the complainant why he was qualified to check the 10% veteran's
preference block, and did not recall any discussion about a disability.
The Personnel Sergeant testified that the AO, in asking about veteran's
preference, stated he did not know the complainant received a Purple
Heart, and the complainant stated he did not. The Personnel Sergeant
testified that the AO thought there was an error in veteran's preference
being checked. The AO testified that he made a mistake and only saw the
Purple Heart wording next to the preference box. The Personnel Sergeant
testified that she stepped in and explained that veteran's preference
did not apply to the job at issue.
Based on the testimony of the AO, Training Officer, and Personnel
Sergeant, we find the preponderance of the evidence shows that the AO
did not ask the complainant a question designed or likely to solicit
information about a disability. Rather, the AO was attempting to clarify
veteran's preference.
Further, under 29 C.F.R. �1630.2(g), the definition of an individual
with a disability is one who (1) has a physical or mental impairment
that substantially limits one or more major life activities, (2)
has a record of such an impairment or (3) is regarded as having such
an impairment. Major life activities include caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. �1630.2(g)(i).<2> The record does
not show the complainant has a disability, as defined above. The AO
testified that he did not consider the complainant to be disabled, and
the RAO testified that he was not aware the complainant had a disability.
The complainant averred that the allegations against him, which he did
not identify, were dismissed "by the State." The complainant contended
that he had the option of staying where he was as a unit administrator,
and was asked to move because of his knowledge and experience. The
complainant's testimony regarding a voluntary move is undermined by the
information he put on his application. In any event, the testimony
of the AO and RAO regarding their belief in the charges has not been
disproved by the complainant.
Finally, the complainant argues that he was better qualified than the
selectee. Under Title VII, an employer has discretion to choose among
equally qualified candidates, so long as the decision is not based on
unlawful criteria. In the absence of such evidence, the Commission
will not second guess the agency's assessment of the candidates'
qualifications. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 259 (1981). The complainant's qualifications are not such that
his nonselection suggests discrimination, and there is no other evidence
of pretext. The agency's finding of no discrimination is affirmed.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to AFFIRM the final decision of the agency
which found that the complainant was not discriminated against when he
was not selected for the position of Support Services Specialist in 1995.
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:
Feb. 25, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the 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.
2 The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.