01a00492
04-06-2000
Paul Salesi, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Paul Salesi, )
Complainant, )
) Appeal No. 01A00492
v. ) Agency No. 98-00124-001
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from a final agency decision
(�FAD�) concerning his complaint of unlawful employment discrimination
on the basis of gender (male), age (forty and over) and disability
(physical), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et
seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein, is whether the complainant proved by a
preponderance of the evidence that the agency discriminated against him
on the bases of his gender (male), age (forty and over) and disability
(physical), when he was not selected for a public affairs assistant
position, GS-303-6.
BACKGROUND
The record reveals that for the relevant period of time, complainant was
employed by the Department of the Navy as a secretary GS-05. Complainant
states, that on October 6, 1997, he applied for a public affairs
assistant position GS-303-6, under announcement number NWC# 120-97.
The record reflects that complainant's work experience specifically
consisted of serving as a public affairs assistant for six months,
which was the same position he was applying for and as the public
affairs officer for two months in the very same office. His record
goes on to reflect, that in addition to filling in for the public
affairs assistant and officer, he executed his other responsibilities
as a photojournalist with precision and expertise. It should be further
noted, that complainant received a commendation for his efforts while he
served as public affairs assistant, the same job, for which he applied.
Despite his experience, on December 7, 1997, complainant was notified
that he was not selected for the position of public affairs assistant.
Rather, a younger female, with no disabilities, and no experience as a
public affairs assistant or officer was selected.
Believing that he was the victim of discrimination, on December 9,
1997, complainant initiated contact with an EEO Counselor. During the
counseling period, complainant stated that on December 7, 1997, he was
informed that he was not selected for a position for which he was clearly
qualified to perform.
Counseling failed, and on January 20, 1998, complainant filed a formal
complaint claiming he was the victim of unlawful employment discrimination
on the bases of his gender (male), age (forty and over) and disability
(physical). The formal complaint was comprised of the matter for which
complainant underwent EEO counseling, discussed above.
The agency accepted complainant's complaint and ordered an investigation.
The investigation revealed that the selecting official did not select
complainant for the above position because he believed complainant did
not possess the necessary administrative skills, enthusiasm and that
he was not a team player. Moreover, the selecting official claimed
that he did not select complainant because he was more suitable as a
photographer as opposed to a journalist which required both writing and
public relations skills. However, complainant's application clearly
demonstrated that he had the skills, training and experience necessary
to excel in the public affairs assistant position. Specifically,
complainant's application is peppered with experience in composing
articles for publications as well as interacting with both military
and civilian interest groups. Furthermore, to support his application,
complainant submitted an award from the Department of the Navy he received
for serving as assistant public affairs officer and admiral's photographer
from September 1993 to March 1997. This commendation, exhibited that
complainant was in fact enthusiastic and a team player with the necessary
skills, training and experience to effectively execute the positions of
assistant public affairs officer and photographer. It should be noted,
that the selectee had no experience as a public affairs assistant.
Rather, her experience was primarily relegated to traditional secretarial
responsibilities and duties. Interestingly, the selecting official did
state, that although the selectee is an attractive female, this did not
influence his judgement in not selecting complainant.
On June 29, 1999, the agency issued a final decision dismissing the
above mentioned complaint. Specifically, the FAD found that complainant
did in fact establish a prima facie case of age, gender and disability
discrimination, but also found that the agency did articulate a legitimate
a nondiscriminatory reason that complainant failed to demonstrate,
by a preponderance of the evidence, was in fact a pretext masking
discrimination.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII, Rehabilitation
Act, or ADEA case alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); Prewitt
v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981)(burdens of
proof in disparate treatment claims brought pursuant to Rehabilitation
Act are modeled after those used in Title VII); Loeb v. Textron, Inc.,
660 F.2d 1003 (1st Cir. 1979) (applying the McDonnell Douglas scheme to
cases brought under the ADEA). Complainant has the initial burden of
establishing a prima facie case of discrimination. McDonnell Douglas,
411 U.S. at 802. If complainant meets this burden, then the burden shifts
to the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). Complainant must then prove, by a preponderance
of the evidence, that the legitimate reason articulated by the agency
was not its true reason, but was pretext for discrimination. Id. at 256.
I. Title VII Claims
Complainant can establish a prima facie case of gender discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411
U.S. at 802). In general, complainant can establish a prima facie case of
gender discrimination by showing: (1) that he is a member of a protected
group; (2) that he was qualified for the position; (3) that he was not
selected for the position; and (4) that the selectee was not a member
of complainant's protected group. McDonnell Douglas, 411 U.S. at 802.
In the case at bar, complainant has established a prima facie case of
gender discrimination. Specifically, complainant has satisfied the above
four prong test. First, complainant is a member of a protected group
because he a male and the selectee is female. Second, the record clearly
establishes that complainant was qualified for the position because of
his prior work experience. Third, it is clear that complainant was not
selected for the position. And fourth, the selectee (female) is not a
member of complainant's protected group. Therefore, complainant has
established a prima facie case of gender discrimination.
In the present case, the agency has articulated that they did not select
complainant because he did not demonstrate enthusiasm, the persona
of a team player and because he did not possess the necessary skills
germane to the position. Contrary to this finding, the record clearly
reflects that complainant possessed prior experience not only as public
affairs assistant, but also as the public affairs officer. In addition,
complainant's application contains experience in the essential functions
of the position, such as the ability to prepare news articles and
handle public affair matters. Moreover, complainant received an award
for his service and dedication while serving in the capacity of the
public affairs assistant. On the other hand, the record reflects that
the selectee mainly possessed skills germane to a secretarial position
with no experience serving in the public affairs assistant position.
It should also be noted, that the selecting official in his affidavit,
makes reference to the selectee as being an attractive woman, but this
did not influence his judgment.
The Commission finds that when it compares the applications of both
the complainant and the selectee, complainant's qualification were
plainly superior to those of the selectee, thereby supporting a finding
of pretext. See Vaneck v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997) (citing Bauer v. Bailor, 647 F.d 1073,
1048 (10th Cir. 1987). Furthermore, the Commission finds that the
statement by the selecting official that complainant did not demonstrate
enthusiasm and the persona of a team player is not believable when
compared to his commendation from the Department of the Navy. At this
point, since the complainant has proven by a preponderance of the evidence
that the agency's legitimate nondiscriminatory reason is unworthy of
belief and pretextual, the Commission finds that the record contains
sufficient evidence that the agency was motivated by discrimination based
on complainant's gender when they decided not to select him. Therefore,
the Commission finds that the agency engaged in gender discrimination
when they did not select complainant for the position of public affairs
assistant. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
ADEA Claim
In an ADEA case, complainant may establish a prima facie case by showing
that he is in the protected group (forty and over), and was treated less
favorably than other similarly situated employees outside his protected
group. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 878
(1996). However, unlike in a Title VII case, in order to prevail in
an ADEA case, complainant must demonstrate that age was a determinative
factor in the adverse employment action. Bell v. Department of Veterans
Affairs, EEOC Request No. 05950863 (Sept. 17, 1997)(citing Loeb, supra).
Traditionally, the initial inquiry in a discrimination case usually
focuses on whether the complainant has established a prima facie case,
following this order of analysis is unnecessary when the agency has
articulated a legitimate nondiscriminatory reason for its actions.
Washington v. Department of the Navy, EEOC Petition No. 0300056 (May 31,
1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether he or she has demonstrated,
by a preponderance of the evidence, that the agency's reasons for its
actions, were merely a pretext for discrimination. Id.; See Also United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-17
(1983). Therefore, in the present case, the Commission will bypass the
prima facie stage of the analysis and focus on whether the complainant
has demonstrated, by a preponderance of the evidence, that the agency's
explanation for its action, was a pretext for discrimination based
on gender.
Here, as stated above, complainant has demonstrated by a preponderance of
the evidence that the agency's legitimate nondiscriminatory reason for
not selecting complainant for the public affairs assistant position was
unworthy of belief and pretextual. However, the record lacks evidence
that would prove the selecting official was motivated in not selecting
complainant because of his age. Therefore, even though the agency
explanation for their decision is unworthy of belief, the Commission does
not find that the agency discriminated against complainant on the basis
of his age. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Rehabilitation Act Claim<2>
For the purposes of this decision, the Commission will assume that
complainant is in fact a qualified individual with a physical disability.
Since the agency articulated a legitimate nondiscriminatory reason
for not selecting complainant, he must demonstrate that the agency's
explanation was in fact a pretext masking disability discrimination.
As stated above, the Commission finds that complainant demonstrated,
by a preponderance of the evidence, that the agency's explanation
was unworthy of belief and pretextual. Notwithstanding this finding,
the complainant fails to demonstrate that his disability motivated the
selecting official when he did not select complainant for the position
for which he applied. Therefore, the Commission does not find that the
agency discriminated against complainant on the bases of his disability.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
CONCLUSION
For the reasons set forth herein, the Commission hereby finds
discrimination on the basis of gender but not on age or disability.
Accordingly, the agency's decision finding no discrimination on the
basis of gender is REVERSED.
ORDER (C1199)
The agency is ORDERED to take the following remedial action:
1. The agency shall offer complainant the position of Public Affairs
Assistant, GS-303-6, or a substantially equivalent position, as of
the effective date of the selection under the Vacancy Announcement NWC#
120-97. Complainant shall also be awarded back pay, seniority and other
employee benefits from that date.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 64 Fed. Reg 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501), no later than sixty (60) calendar
days after the date this decision becomes final. The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
2. Complainant is entitled to an award of reasonable attorney's fees
incurred in the processing of the claim (including appeals) regarding
the discriminatory non-selection for the Public Affairs Assistant.
3. The agency shall conduct a supplemental investigation pertaining
to complainant's entitlement to compensatory damages. The agency shall
afford complainant sixty (60) days to submit additional evidence in
support of his claim for compensatory damages.<3> Within sixty (60) days
of its receipt of complainant's evidence, the agency shall issue a final
decision determining complainant's entitlement to compensatory damages,
together with appropriate appeal rights. A copy of the final decision
must be submitted to the Compliance Officer, as referenced below.<4>
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled, �Implementation of the Commission's
Decision.� The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at the Naval War College, Newport Rhode
Island, copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 19848,
Washington, D.C. 20036. 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 64 Fed.
Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred
to as 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)(Supp. V 1993). If the complainant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.409).
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 6, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________ _______________________
Date Equal Employment Assistant
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et al. has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Department of the Navy, Naval War College, Newport, Rhode Island,
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The Department of the Navy, Naval War College, Newport, Rhode
Island, has remedied the employee affected by the Commission's
finding by retroactively awarding him a Public Affairs Assistant
GS-303-6 position, with back pay and benefits and by remanding for a
supplemental investigation into compensatory damages. The Department
of the Navy, Naval War College, Newport, Rhode Island, will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all Federal equal
employment opportunity laws.
The Department of the Navy, Naval War College, Newport, Rhode Island,
will not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
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 Pursuant to the Rehabilitation Act Amendments of 1992, the Americans
with Disabilities Act's employment standards apply to all non-affirmative
action employment discrimination claims filed by federal applicants or
employees with disabilities under Section 501 of the Rehabilitation Act.
Pub. L. No. 102-569 � 503(b), 106 Stat. 4344 (1992)(codified as amended
at 29 U.S.C. � 791(g)(1994)).
3 See, e.g., Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993); Benton v. Department of Defense, EEOC Appeal No.
01932422 (December 10, 1993).
4Complainant, in his formal complaint, requests fair and just compensation
for not being selected and the Commission interprets this as a request
for compensatory damages.