0120083835
06-18-2010
Larry G. Harrelson, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (U.S. Geological Survey), Agency.
Larry G. Harrelson,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(U.S. Geological Survey),
Agency.
Appeal No. 0120083835
Agency No. USGS-07-0502
DECISION
On September 3, 2008, complainant filed an appeal from the agency's August
6, 2008, 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
BACKGROUND
Complainant contacted an EEO counselor on September 19, 2007, and filed
a formal complaint on November 20, 2007, alleging discrimination based
on age (54) when he was removed as Project Chief for the Congaree
Hydrology Investigation Section on August 20, 2007, and replaced by
a younger scientist. Following an investigation, he was notified of
his right to request a hearing before an EEOC Administrative Judge or a
final decision from the agency. Complainant requested that the agency
issue a final decision, and it did so, finding that the agency did not
discriminate against complainant as alleged.
At the time of this event, complainant worked as a Hydrologist, GS-12,
in the agency's Hydrologic Investigations Section, South Carolina
Water Science Center, in Columbia, South Carolina. In May 2003, the
former District Director assigned complainant to be the Project Chief
and primary author on the Congaree Hydrology Investigation, an inquiry
into the effects of surface-water flow in the Congaree River on the
ground-water hydrology of the Congaree National Park floodplain (Project).
As Chief, complainant was responsible for organizing and coordinating the
project, assigning project tasks to others, and outlining and preparing
draft reports. He also was individually responsible for the portion
of the study involving ground-water.1 In a letter dated August 20,
2007, complainant's immediate supervisor, the Supervisory Hydrologist
(S1), informed complainant that he was removing complainant as Chief
of the Project, noting that the Project had not been completed within
budgeted resources. The leadership of the project was assigned to one
of the co-authors, EC, an Engineer and Hydrologist (age 50).
From early 2007, after complainant provided the first written draft of
the Project report, S1 established a series of team meetings to comment
on and develop the report. In addition, S1 provided a series of progress
reviews for complainant. For the first draft, S1 and the team discussed
the contents, provided feedback, and agreed on specific modifications to
the report. According to S1, complainant submitted his second version in
late May 2007; however, S1 and others on the team found that complainant
had not made the changes, working instead on other aspects; the team also
agreed that a new section, describing the approach of the investigation,
should be added. In the team meeting after receipt of the third version
of the report, submitted for review in late June 2007, the group noted
that complainant had not integrated the changes and corrections from
the co-authors, correction of inaccuracies resulting from comparisons of
dissimilar data, and general feedback from others. Finally, S1 directed
complainant to correct and revise the draft according to the structure
established by the team reviews, including those regarding organization of
the report and removal of repetitive information and reports. Following
the fourth version of the report, S1 and the team concluded that the
report required significant revisions to its content and organization
before sending the report forward for colleague (peer) review. At this
point, S1 advised complainant that the agency required completion of the
report, and that leadership of the Project was transferred leadership
to EC, although complainant would remain on the team.2
Complainant contended that he was unable to complete the Project
due to the interference of others, S1's lack of support, and because
other supplied incorrect data to him. In a letter dated March 15,
2007, complainant informed S1 that he believed others were acting in
concert against him following a "hidden agenda," putting his job and
reputation at risk, and that he "was fearful of age discrimination."3
In particular, complainant cited EC, who complainant alleges failed to
provide him correct and accurate data and refused to provide modeling
and statistical support for some wells, without repercussions from S1.
Complainant opined that S1 and agency management sought to remove him from
his well-paying position to "lighten the load" on the Center's budget.
According to complainant, S1 discriminated against him based on age
when he was removed as Chief, stating that S1 had scrutinized his work
more than was usual and criticized him. Complainant also averred that
S1 favored EC, who was younger than complainant, because EC used newer
methods of analysis for modeling and predictive analysis, specifically
ANN Modeling. The Project required use of ANN modeling and, because
complainant was not familiar with it, he had to rely on EC to perform
the necessary analysis. Complainant asserted that EC did not perform
the analysis he requested, forcing complainant to use Excel spreadsheets,
to discredit him because of his age and inability to use ANN Modeling.4
CONTENTIONS ON APPEAL
Neither party submitted comments on appeal.
ANALYSIS AND FINDINGS
Standard of Review
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Disparate Treatment Claims of Discrimination
In claims of discrimination based on disparate treatment, such as
complainant's, where there is no direct evidence of discrimination,
we examine the matter according to the three-part analysis described in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For complainant to
prevail, s/he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Once
complainant has established a prima facie case, the burden of production
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). If the agency is successful, the burden reverts to
the complainant to demonstrate by a preponderance of the evidence that
the agency's reason(s) for its action was a pretext for discrimination.
At all times, complainant retains the burden of persuasion, and it is
his/her obligation to show by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
Age Discrimination
Analysis of complainants of discrimination based on age follow the
three-part outline from McDonnell Douglas, supra. Under the ADEA,
it is "unlawful for an employer . . . to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age." 29 U.S.C. � 623(a)(1).
When a complainant alleges that he or she has been disparately treated
by the employing agency as a result of unlawful age discrimination,
"liability depends on whether the protected trait (under the ADEA,
age) actually motivated the employer's decision." Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper
Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is, [complainant's]
age must have actually played a role in the employer's decision making
process and had a determinative influence on the outcome." Id.
Analysis of Complainant's Claim
For purposes of analysis, we will assume, arguendo, that complainant
established a prima facie case of discrimination based on age. In the
second step of the analysis, the burden of proceeding shifts to the agency
to articulate its reason for its action. Here, the agency stated that it
removed complainant as Chief due to poor performance, as outlined in S1's
letter of August 20, 2007, and previous progress reports in March, May,
and August 2007. We find that the agency has articulated a legitimate,
nondiscriminatory reason for removing complaint.
In the third step of analysis, the ultimate burden of persuasion returns
to complainant, and he must demonstrate, by a preponderance of the
evidence, that the reason(s) proffered by the agency was a pretext for
discrimination. Id. at 256. To ultimately prevail, a complainant must
demonstrate that the agency's reasons for its actions were not its true
reasons and that its actions were influenced by legally impermissible
criteria, i.e., animus based on discriminatory factors, i.e., his age.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
We find that complainant has not shown that the agency's actions were not
its true reasons and that its actions were taken because of his age.
Complainant has not presented probative evidence of pretext; mere
speculation is insufficient to demonstrate pretext. Complainant has
adduced no evidence to show that the agency's reasons were based on the
discriminatory factor of age rather than complainant's job performance.
CONCLUSION
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
decision, because the preponderance of the evidence of record does not
establish that discrimination occurred as alleged.
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
June 18, 2010
Date
1 Although he was Chief, complainant had co-authors and other
project members who had responsibility for portions of the study,
and who participated in review of project. We note that the agency's
investigations and studies tend to be produced by collective efforts.
2 At this time, S1 also informed complainant that he was not meeting
the requirements of his position nor performing at the fully successful
level. In December 2007, S1 denied complainant's within-grade increase.
Complainant did not raise these matters in his complaint.
3 S1 informed complainant that, if he suspected discrimination, he should
contact an agency EEO counselor, providing the phone number and website.
4 S1 rejected complainant's effort to hold others responsible, noting
that EC's data was corrected within four months and was a minor factor
in the overall delay of the Project. S1 noted that complainant was not
a "team player" in the Project, often refused to implement decisions
made in collaboration with others on the team, and did not seek input
or assistance from others.
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0120083835
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083835