0120083597
01-15-2009
Kevin T. O'Neill, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Kevin T. O'Neill,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 0120083597
Agency No. DOS-F-019-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 25, 2008 final decision concerning his
equal employment opportunity (EEO) complaint claiming unlawful 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 a Chief,
Requirements and Business Analysis Branch, at the agency's Capital
Planning and Architecture Division, Office of Chief Technology Officer,
Bureau of Diplomatic Security, in Washington, D.C.
On November 14, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against him
on the basis of age (54) when:
he was not promoted from FS-02 to FS-01 by the 2006 Foreign Service
Selection Board and had not been since he became eligible for promotion
in 2002.
The record reflects that the 2006 Foreign Service Selection Board (Board)
recommended thirty-eight FS-02s eligible for promotion out of an applicant
pool of 185 individuals, of whom twenty-three were promoted to FS-01.1
The record further reflects that complainant was "mid-ranked" by the
Board and not recommended for promotion.
Complainant stated that he was promoted to FS-02 in 1999, and has been
eligible for promotion since 2002. Each year a list of those staff
members who have been promoted are published. Complainant stated that his
name did not appear on the list of promotions for the years 2002, 2003,
2004, 2005 or 2006. He believes he should have been promoted based on
his job performance, stating he occupies a Division Chief position that
is normally an FS-01 position. Moreover, he asserts that shortly after
entering his position, his responsibilities increased following 9/11 and
the resulting Afghanistan and Iraq operations. Complainant asserts that
these new responsibilities demonstrated that he was effectively working
at the next higher grade level, one of the primary considerations for
promotion. Complainant further asserted that he heard rumors that a
named Assistant Secretary of State purportedly made a comment in 2001,
that "older employees should not be promoted because promoting younger
staff was more cost effective." Complainant alleges that promotion
decisions favored employees under 45 and, as a result, older employees,
such as himself, were not receiving promotions at the same rate as those
45 and younger. He asserts that when he sent an email to an Assistant
Secretary detailing his concerns, five staff members over the age of 50
were promoted in 2006, more than were promoted from 2002 through 2005
combined.
The report of investigation noted that the statements of the 2006 Board
members for the FS-01 promotions could not, based on their recollection,
provide specific information to explain why candidates were selected over
complainant for promotion. The investigator indicated that attempts were
made to obtain from the agency the evaluation materials for complainant
and the other candidates recommended for promotion to give to the panel
members to refresh their recollection. However, the agency did not
provide these materials. Therefore, the Board members could only provide
general information about the promotion process during the investigation.
One Board member (B1) stated that the Board is guided by the promotion
precepts, which is "a document negotiated by the Department of State
and the American Foreign Service Association. The precepts are in
six categories-Leadership, Interpersonal, Intellectual, Managerial,
Communications, and Substantive Knowledge." B1 further stated that the
precept categories generally do not change, but that the information to
be considered under each precept is reviewed annually and may be modified.
B1 stated that the Board is required "to follow the precepts established.
The ages of promotion candidates are not available to the Board members."
B1 stated that he and other Board members reviewed candidates eligible
for promotion from FS-04 to FS-03, FS-03 to FS-02 and FS-02 to FS-01.
B1 stated that "each Board member votes individually on each file and
ranks candidates for promotions, for "mid-ranking," and for "low ranking."
Those candidates identified for promotion are reviewed again and ranked
by the Board. Those candidates that are ranked above the cut-off point,
which is apparently determined by the Bureau of Human Resources, are
promoted. Those that fall below the cut off point are not. B1 stated
that while reviewing the candidates' files, he "could not ascertain a
candidate's age by reviewing their record. The evaluations are completed
by the primary and secondary supervisors and prior to submission to the
Bureau of Human Resources and each one is read by an EER Review Committee
to ensure that no evaluation contains any inadmissible statements."
Another Board member (B2) stated that, as a member of the board, he was
responsible for reviewing the personnel files for candidates eligible for
promotion that year. B2 stated that the candidates files "are placed in
three groups, 'promote', 'mid-rank', and 'low rank'. For the 'promote'
and 'mid-rank' groups, we go through the files again and rank order the
candidates from high to low. In the review process, a large number of
files are reviewed, in one promotion category alone we had over 300 files.
The evaluations are reviewed against the core precepts that establish
performance standards for each grade level." In regard to complainant's
file, B2 stated "I believe his file was reviewed a second time, so he
would have been in the 'promote' or 'mid rank' groups."
A third Board member (B3) stated that his role was to prepare a list
of names of candidates to recommend for promotion. B3 further stated
that the candidates' applications were evaluated and "placed in one
of three groups, promote, mid-rank and low rank." B3 stated that the
board reviewed over 700 evaluations of candidates for promotion, taking
their previous assignments, awards and evaluations into consideration.
Specifically, B3 stated that the "performance information documented in
the evaluation was the basis for the board's recommendation for promotion
consideration." B3 stated "in the review of the evaluations, the board
does not have information about the age of the candidate. The evaluation
reviewed do not have information in the reports about applicants' age."
B3 stated that age was not a factor in any of the deliberations by the
board.
At the conclusion of the investigation, complainant was provided with
a copy of the report of the investigation and notice of the right to
request a hearing before an EEOC Administrative Judge or a final decision
within thirty days of receipt of the correspondence. Complainant did not
respond. On July 25, 2008, the agency issued the instant final decision.
In its July 25, 2008 final decision, the agency found that complainant
did not establish a prima facie case of age discrimination when he
was not selected for promotion in 2006. The agency determined that
complainant did not show that his qualifications were plainly superior
to the qualifications of the selectees. Specifically, the agency noted
in his affidavit, complainant acknowledged that he did not know the
qualifications of the selectees and that he just read the list of names
on the promotion list to see if his name was on it. The agency further
found that assuming, arguendo, complainant had established a prima facie
case, agency management articulated legitimate, nondiscriminatory reasons
for its actions, which complainant failed to show were a pretext.
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).
Upon review, the Commission determines that the record is insufficient
to allow a reasoned determination on the merits of the instant case.
The Commission's regulations and EEOC Management Directive for 29
C.F.R. Part 1614 (November 9, 1999) require agencies to develop an
impartial and complete factual record. See 29 C.F.R. � 1614.108(b);
EEO-MD-110, Chapter 6. An appropriate factual record "is one that allows
a reasonable fact finder to draw conclusions as to whether discrimination
occurred." Id. While the record contains the generalized affidavit
testimony discussed above, there is no evidence an individualized
assessment as to why complainant was ranked "mid-ranked" and was not
promoted from FS-02 to FS-01, or why other candidates were selected
over complainant. As already noted, the investigator indicated that
attempts were made to obtain from the agency the evaluation materials
for complainant and the other candidates recommended to give to the
panel members to refresh their recollection. However, the agency did not
provide these materials. Instead, the board members testified as to the
general procedures they followed in selecting candidates for promotion
based on the criteria negotiated between the agency and the American
Foreign Service Association and referenced in the Procedural Precepts.
They asserted in general that they were not aware of the ages of any of
the candidates for promotion and that age was not at all a factor in
their decisions. However, at least two of the Board members conceded
that they personally knew complainant, and can be presumed to be aware
of his age. Moreover, we note that, during the investigation, the ages
of the candidates considered by the Board was apparently not provided
by the agency.
After a careful review of the record, we find that the evidence is
insufficient to allow a determination on the merits of the instant case.
Accordingly, the agency's final decision finding no discrimination is
VACATED and REMANDED to the agency to conduct a supplemental investigation
pursuant to the ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation which
shall include, but not be limited to, the following actions:
1. The agency shall provide the investigator with ages of all the
candidates considered for promotion from FS-02 to FS-01 by the 2006
Selection Board, including those of the candidates recommended for
promotion. Similar age data should also be provided for the 2002 through
2005 promotion processes.
2. The agency shall provide the investigator with the evaluation materials
originally requested during the investigation for complainant and the
other candidates recommended for promotion to FS-01.
3. The investigator shall gather statements from complainant's primary
and/or secondary supervisors for an assessment of his performance in
relationship to the established "precepts" for promotion (Leadership,
Interpersonal, Intellectual, Managerial, Communications, and Substantive
Knowledge).
4. Complainant shall be provided the opportunity to review the
supplemental evidence and statements gathered and submit a supplemental
affidavit and/or other evidence in response.
The agency shall issue a new report of investigation following the
supplemental investigation to complainant within sixty (60) calendar
days of the date this decision becomes final. The agency shall notify
complainant that within thirty (30) calendar days of receipt of the
new report of investigation, he has the right to request a hearing and
decision from an EEOC Administrative Judge or may request an immediate
final decision pursuant to 29 C.F.R. 1614.110.
A copy of the agency's notice that transmits the new report of
investigation file and notice of rights must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, D.C. 20013. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 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 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
January 15, 2009
__________________
Date
1 The investigative report indicates that although the ages of the
candidates who were recommended for promotion to FS-01 by the 2006
Selection Board was requested, the information was not provided by the
agency.
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0120083597
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036