01A44767_r
10-22-2004
Richard A. Shaw, Jr., Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (Bureau of Indian Affairs), Agency.
Richard A. Shaw, Jr. v. Department of the Interior
01A44767
October 22, 2004
.
Richard A. Shaw, Jr.,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
(Bureau of Indian Affairs),
Agency.
Appeal No. 01A44767
Agency Nos. 0S-00-010
0S-00-019
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning two consolidated complaints 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.
The record reveals that during the relevant time, complainant was employed
as a Staff Accountant, GS-510-12, at the agency's Division of Accounting
Management (DAM) in Reston, Virginia. Complainant sought EEO counseling
and subsequently filed two formal complaints on February 3 and 14, 2000,
respectively. Therein, complainant claimed that he was discriminated
against on the bases of national origin (Minnesota Chippewa) and age
(D.O.B. 1/6/58) when he was not selected for the position of Accountant,
GS-510-13, under Vacancy No. OST-00-011, at the agency's Office of
Trust Fund Management (OTFM) in Albuquerque, New Mexico (Complaint 1).
Complainant also alleged that he was discriminated against on the
bases of national origin (Minnesota Chippewa) and age (42) when he
was not selected for the position of Accountant, GS-510-12/13, under
Vacancy No. OST-99-109, at the agency's OTFM in Albuquerque, New Mexico
(Complaint 2).
The agency consolidated complainant's two complaints and conducted an
investigation. At the conclusion of the investigation, complainant was
informed of the right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
The record reflects that complainant initially requested a hearing, but
that the request was subsequently withdrawn. The agency thereupon issued
a FAD on the two consolidated complaints, finding no discrimination.
In its June 24, 2004 FAD, with respect to Complaint 1, the agency
determined that complainant established a prima facie case of national
origin and age discrimination concerning his non-selection for the
position of Accountant, GS-510-13. However, the agency determined
that it had articulated a legitimate reason for its non-selection
of complainant. Specifically, the agency found that the selectee for
the subject position was better qualified than complainant. Further,
the agency found that complainant failed to present any evidence which
demonstrated that the agency's articulated reasons for its actions were
pretext for discrimination.
With respect to Complaint 2, the agency determined that complainant
established an inference of discrimination concerning his non-selection
for the position of Accountant, GS-510-12/13. However, the agency
determined that it had articulated a legitimate reason for its
non-selection of complainant. Specifically, the agency found that the
selectee for the subject position was better qualified than complainant.
Further, the agency found that complainant failed to present any evidence
which demonstrated that the agency's articulated reasons for its actions
were pretext for discrimination.
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, she 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).
Complaint 1 (Agency No. 0S-00-010)
We find that the agency articulated a legitimate, non-discriminatory
reason for its employment action, which was not persuasively rebutted
by complainant. The record in this case contains an affidavit from the
Selecting Official (SO). Therein, the SO stated that she received a
Certificate of Eligible Candidates listing referred candidates, including
complainant, for the subject position from the Personnel Office; and that
she reviewed each candidate's application and made her final selection
without conducting an interview. The SO stated she made the decision
to select the selectee (Zuni Pueblo female) because she needed someone
who could handle the position from the first day on the job and that
the selectee was the only party on the certificate that had any kind of
experience in �IIM, it was a very specialized field and she was the only
one that fit what we needed."<1> The SO further stated that the selectee
had worked in the IIM at the area level and IIM at headquarters level
for several years; had extensive knowledge of the transitioning program;
and had specialized knowledge that was needed for the subject position.
The SO acknowledged that complainant passed the Certified Public
Accountant (CPA) exam and had a bachelor's and master's degree; however
the SO stated that complainant did not have any IIM experience. The SO
stated that complainant "didn't have any knowledge in IIM at all so he
couldn't help our program without a lot of training, not to say that he
couldn't have learned it, but I needed somebody that could come in right
away and she was the only one." The SO denied advertising the subject
position as a GS-13 because she intended to preselect the selectee for
the subject position. Furthermore, the SO stated that age and "tribal
affiliation" had nothing to do with her decision to select the selectee
for the subject position.
The record also contains a copy of the Concurring Official (CO). Therein,
the CO stated that he concurred with SO's decision to select the selectee
for the subject position because she "could hit the ground running,
with what we would require." The CO further stated that the selectee
had the knowledge and skills required for the subject position.
Complaint 2 (Agency No. 0S-00-019)
We find that the agency articulated a legitimate, non-discriminatory
reason for its employment action, which was not persuasively rebutted
by complainant. The record contains an affidavit from a Recommending
Official (RO). Therein, the RO stated that because the subject
position would be under his supervision, he was involved in initiating
recruitment for the subject position by writing the position description
and Knowledge, Skills and Abilities (KSAs). The RO stated that his
supervisor, the formal selecting official, received a Certificate of
Eligible Candidates listing referred candidates, including complainant,
for the subject position from the Personnel Office. The RO stated that
his supervisor gave him the list and asked him to review it and make
a recommendation. The RO stated that he did not conduct interviews
and that he ranked the candidates after reviewing their applications
and KSAs. The RO stated that he then wrote a letter of recommendation
for his supervisor recommending the selectee for the subject position.
The RO stated that he recommended the selectee because he "pretty
much rose to the top of my review and evaluation of responses that were
provided;" and that he had "the most years of experience for the work I
needed to have done." The RO stated that while the selectee was ranked
first, complainant was ranked third with less relevant experience.
The RO stated that complainant's auditing experience "was more in the
compliance area. More in contract compliance auditing as opposed to
financial statement type auditing." Moreover, the RO stated that age and
"tribal affiliation" had nothing to do with the ranking determination
or his decision to select the selectee for the subject position.
The record also contains a copy of the Selecting Official. Therein,
the SO stated that she considered herself the Concurring Official
concerning the selection for the subject position. The SO further
stated that she relied on RO's recommendation in selecting the selectee
for the subject position because "we were looking for someone with more
Financial Audit background." The SO stated that the selectee came from
the Internal Revenue Service and that the selectee had considerable �
IRS Financial Audit background, and he had been a grade 12 for several
years, if I recall. And he's worked here for about a year or so."
Finally, we find that complainant has not demonstrated that the agency's
articulated reasons for the non-selections (Complaints 1 and 2) were a
pretext for discrimination.
Accordingly, the agency's decision finding no discrimination on the
consolidated complaint is AFFIRMED.
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
October 22, 2004
__________________
Date
1The record reveals that �IIM� refers to
�Individual Indian Monies� account.