01a00751
04-19-2000
Louis R. Pernice, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Louis R. Pernice, )
Complainant, )
)
v. ) Appeal No. 01A00751
) Agency No. B-97-2253
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
_______________________________ )
DECISION
The Commission finds that the agency's September 22, 1999 decision
finding that the agency did not discriminate against complainant based on
complainant's age (date of birth: July 27, 1952) and in retaliation for
prior protected activity, was proper.<1> N In the complaint complainant
alleged that he was discriminated against when he was not selected
for the position of Supervisory Criminal Investigator, GS-14, in San
Francisco and Miami Field Offices (vacancy announcements 96-29-A and
96-29-B, respectively). Complainant did not request a hearing.
The record shows that complainant filed an EEO complaint in 1989
regarding his failure to be promoted in the Chicago Field Office.
Complainant claims that in retaliation for his prior complaint he was
not selected for the two vacancies at issue in the present complaint.
The record shows that complainant did not make the Candidate Referral
List (also referred to as the Best Qualified List) for either vacancy.
Five promotion eligibles out of 13 candidates made the Candidate Referral
List for the San Francisco vacancy. The Selectee for the San Francisco
vacancy made the Candidate Referral List and was selected for the position
on October 1, 1996. The date of birth for the Selectee for the San
Francisco vacancy was November 3, 1946. Thus, the San Francisco Selectee
was older than complainant. The Commission finds that complainant has
failed to show that the selection of the San Francisco Selectee was
motivated by discrimination on the basis of complainant's age.
Five promotion eligibles out of 23 candidates made the Candidate Referral
List for the Miami vacancy. The Selectee for the Miami vacancy made
the Candidate Referral List and was selected for the position on October
1, 1996. The date of birth for the Selectee for the Miami vacancy was
December 29, 1963. Thus, the Miami Selectee was 32 years old at the
time of the selection and the complainant was 44 years old.
Special Agent A and Special Agent B both served on the Merit Promotion
Scoring Panel for both vacancies. Both Special Agents A and B completed
Merit Promotion Scoring Sheets in which they each provided a separate
numerical score for each of the six evaluation criteria (e.g., ability
to manage the investigative budget effectively) and separate scores for
education and training, awards, and performance appraisal. The scores
were based on the applications only. All of these scores were added
together to render a total score for each promotion eligible applicant
for each vacancy. The record indicates that the Personnel Management
Specialist chose who made the Candidate Referral Lists for the positions
by attempting to choose the top five candidates and by looking for a
natural break point. Thus, the Personnel Management Specialist would
try to only allow the top cluster of individuals, based on the Merit
Promotion Scoring Sheets, to make the Candidate Referral Lists.
The Merit Promotion Scoring Sheets indicate that complainant's total
score was below, by several points (for both Special Agents A and B and
for both vacancies), the applicants chosen for the Candidate Referral
Lists. The Commission's review of the applications fails to show that
complainant's score was kept artificially low. Although complainant
argues that he deserved higher scores in particular categories,
he has failed to show how his score relative to the scores of the
other candidates was lower than one might expect after reviewing
the applications. Although complainant argues that his education was
excellent, and in some cases superior to other candidates who made the
Candidate Referral Lists, the record shows that complainant received
the maximum five points allowable for �education and training� from both
Special Agents A and B for both positions. The Commission notes that the
Selectee for the Miami vacancy received a score of four for �education
and training� from both Special Agents A and B and that the Selectee
for the San Francisco vacancy received a score of two for �education
and training� from both Special Agents A and B. Thus, complainant's
purported superior education was accounted for in the numerical scoring.
Complainant has failed to show that the categories chosen for the scoring
for the positions were chosen in an attempt to discriminate against
complainant. Complainant argues that the scores by Special Agents A and
B were almost identical for complainant and that somehow this shows a
discriminatory intent. The Commission finds that Special Agents A and B
scored all of the promotion eligible applicants very similarly and that
the total scores of the vast majority of applicants only differed by a
total of three or less points between the two raters for each position
(most scores were in the 60s and 70s). The Commission finds that the
similarity in scoring is most likely the natural result of Special
Agents A and B attempt to apply the same standards to all applicants.
Complainant has not shown that the similarity in scoring is, in the
instant matter, indicative that the scores were being manipulated for
any discriminatory reason.
The SAC-Miami made the selection for the Miami vacancy (but not the San
Francisco vacancy). Complainant claims that the Special Agent in Charge
of the Miami Field Office (SAC - Miami) once said to complainant that he,
the SAC-Miami, �was not going to hire any fat, lazy agents waiting to
retire.� The SAC-Miami, when asked if he made the statement, responded
as follows:
Fat would not have been my word. Lazy, in the context of did I want
people who would work hard and aggressively and not be retired here, yes.
Did I not want lazy people? Absolutely, I didn't want lazy people.
. . . .
I don't think I would ever say �ready to retire.� I would have probably
said I don't want somebody who is coming here to retire.
. . . .
Well, I wouldn't want somebody at any age coming here thinking oh,
this is a soft job, I don't have to do anything. I'm just going to
stay here until I retire, whether that be 20 years, 15 years, 10 years,
two weeks or a month. That wouldn't have mattered.
The Commission finds that the statement made by the SAC-Miami is
insufficient to show discriminatory animus on the basis of age.
Furthermore, the record fails to show that the SAC-Miami was involved
in the scoring of candidates for the Candidate Referral List for the
Miami vacancy.
The Commission notes that complainant himself provided the following
possible non-discriminatory reason for his non-selections:
I believe that it [complainant's application] was basically underrated
because I was supposed to be kept off the BQ list for the Miami job
because it was still my feeling and my belief that they didn't want
anybody from the Miami office to be promoted to an Assistant Special
Agent in Charge in that office, especially me, for the past counseling
memo and things of that nature.
Complainant is referring to a prior investigation of the Miami office
that reflected poorly on the Miami office.
After reviewing the entire record, the Commission finds that
complainant has failed to show that his non-selections were motivated
by discrimination on the bases of complainant's age or in retaliation
for his prior protected activity.
The agency's decision finding no discrimination is AFFIRMED.
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:
April 19, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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
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 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.