01a53775
09-19-2005
Rhudy R. Ayers, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Rhudy R. Ayers v. Department of Agriculture
01A53775
September 19, 2005
.
Rhudy R. Ayers,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A53775
Agency No. 020744
Hearing No. 110-2003-08512X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and 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.
During the relevant time, complainant was employed as an Animal Care
Inspector, GS-704-9, at the agency's Animal and Plant Health Inspection
Service (APHIS) in Raleigh, North Carolina. Complainant filed a formal
complaint on July 18, 2002. Therein, complainant claimed that he was
discriminated against on the bases of age (D.O.B. 1/29/47) and in reprisal
for prior EEO activity when:
he was not selected for the position of Georgia Investigative and
Enforcement Services (IES) Investigator, GS/5/7/9/11, announced under
Job Vacancy Number, 6-43-154-2.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding no discrimination.
In her decision, dated April 6, 2005, the AJ found that complainant
established a prima facie case of age discrimination because the
selectee, not in complainant's protected class, was selected for the
position of Georgia IES Investigator. Regarding complainant's reprisal
claim, the AJ found that complainant established a prima facie case of
reprisal discrimination because an identified management official was
aware of his prior protected activity. The AJ determined, however,
that the agency articulated legitimate, nondiscriminatory reasons for
complainant's non-selection. The AJ found that complainant did not
establish that more likely than not, the agency's articulated reasons,
as discussed below, were a pretext to mask unlawful discrimination.
Thirteen candidates, including complainant, were rated as qualified on
the Certificate of Eligibles. In his testimony, the Selecting Official
(SO) stated that after reviewing the candidates' application packages,
he selected five candidates from the certificate to be interviewed.
The SO stated that he was looking for someone who was familiar with
plants because "we do investigations on the importation and exportation
of plants and everything involved with plants." The SO further stated
that he chose the selectee for the subject position because the selectee
had strong communication skills; good writing skills; research skills;
was detail oriented; had a college degree in biology; and had work
experience relating to plants. The SO stated that he asked selectee if
he would be willing to relocate, and that the selectee responded that
he was "more than willing to move."
The SO stated that complainant was qualified for the subject position,
but he lacked a college degree; did not display exemplary writing or
research skills; and had extensive work experience relating to animals,
but not with plants. SO stated that complainant was not "being real
specific about the type of organization and conducting investigations"
during the interview. SO stated that the general impression he received
was that complainant "had been around these IES investigators and that's
kind of the way that he had received his, his experience in that matter."
SO stated that during the interview, complainant was a "name dropper."
Specifically, SO stated that he felt that complainant thought it would
be more important for him to know that he knew all of the investigators
"versus what he actually knew of being an investigator." SO stated that
during the selection process, the Assistant Regional Director informed
him that on one occasion, complainant had accompanied him to conduct an
investigation which turned into a heated discussion, and that complainant
"abandoned him and went and sat in the car." SO stated that during the
interview he asked complainant how he would respond in a confrontational
situation, and that complainant stated that "he might need assistance."
SO stated that he had concerns with complainant's response because IES
Investigators work alone "very frequently." SO stated that he asked
complainant if he would be willing to relocate, and that complainant
initially stated that he did not want to move but "ultimately he said
he would have to talk to his wife about it."
With respect to complainant's assertion that he was asked about his age
during the interview, SO stated that while he never asked complainant
his age, complainant was the one that made a comment about his age.
With respect to complainant's assertion that he was asked about his
retirement plans, SO stated that he only informed complainant that if
hired, he would have to go back to a GS-7 level "and I don't know if
you'll be able to recoup the lost salary from going back to a [GS-7] in
the time frame he gave me." SO stated that complainant then told him that
he was upset that agency personnel officials rated him as a qualified
candidate for the subject position at the GS-7 level. SO stated that he
felt that complainant was attacking him for being rated at GS-7 level.
SO stated that he had concerns about hiring complainant because "he wasn't
going to get the pay he was going to have and he might have to move."
SO stated that he had "who I thought was also an excellent candidate
in [selectee], who was willing to do whatever it took to get the job.
And that's why I made the decision the way I did."
In his testimony, the Approving Official (AO) for the subject position,
stated that he was aware of complainant's prior protected activity
because he was the identified responsible management official in
complainant's prior complaint. The AO, however stated that he did not
inform the SO of complainant's prior protected activity at any time
prior to the selection for the subject position. The AO further stated
that he only provided guidance to the SO during the selection process;
and that they never discussed the age and potential retirement plans
of any of the candidates, including complainant. The AO stated that
prior to the selection for the subject position, the SO informed him
that he was considering choosing the selectee based on the strength of
the selectee's interview. The AO stated that the SO also stated that
he based his determination on other criteria such as the selectee's
communication skills, written communication skills, potential leadership
skills, and strong computer skills. The AO stated that the SO took the
selectee's work experience in plants into consideration because "a lot
of our work was getting heavily directed toward . . . doing plant work."
Furthermore, the AO stated that he concurred with the SO's determination
to select the selectee, and signed off the selection.
Further, the AJ found no evidence to support complainant's contentions
that he was more qualified than the selectee, and that his length of
service did not equate to better qualifications than the selectee.
The agency's final order, dated June 28, 2005, implemented the AJ's
decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
A claim of disparate treatment is examined under the three-part 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 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. 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).
As discussed above, the agency articulated legitimate, nondiscriminatory
reasons for not selecting complainant for the subject position, and
complainant did not establish that these reasons were a pretext for
discrimination.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that the agency's actions were
motivated by discriminatory animus toward complainant's age or prior
protected activity. We discern no basis to disturb the AJ's decision.
Accordingly, we AFFIRM the agency's final order, implementing the AJ's
finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 19, 2005
__________________
Date