01971316
09-10-1999
Richard Minkoff, Appellant, v. Bill Richardson Secretary, Department of Energy Agency.
Richard Minkoff, )
Appellant, )
) Appeal No. 01971316
v. ) Agency No. 98(81) WAPA
)
Bill Richardson )
Secretary, )
Department of Energy )
Agency. )
)
)
DECISION
Appellant filed a timely appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (white), sex (male), age (DOB 7/19/44), 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. Appellant alleges he was discriminated
against when: (1) he was not selected for the position of Administrative
Officer, Upper Great Plains Regional Office GS-14. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the relevant time period, the appellant
was employed as a Personnel Officer GM-13, at the agency's Western Area
Power Administration and had been so employed since 1983.
Believing that he was a victim of discrimination, the appellant sought EEO
counseling and, subsequently, filed a complaint on March 6, 1996.
On August 19, 1996, the appellant requested that the agency issue a
final agency decision.
The agency concluded that the appellant established a prima facie case
of sex and age discrimination when he demonstrated that the selectee
for the position was female and under the age of forty. The agency
concluded that the appellant failed to establish a prima facie case of
race discrimination because the selectee for the position was also white.
In finding that the appellant was not discriminated against, the agency
stated that he failed to establish that its legitimate non-discriminatory
reasons for not selecting him were a pretext for discrimination.
On appeal, the appellant contends that the agency engaged in "an
historical pattern of discrimination" against white males over the
age of 40. He cited as examples of the pattern, the selection of an
Asian male under age 40 for the Administrative Officer position for the
Sierra Nevada Western Region; the selection of an Hispanic female under
age 40 for Administrative Officer in the Desert Southwest Office; the
selection of a white female under age 40 for the job at issue in this
case; and the selection of a white female over the age of 40 for the
Administrative Officer at Headquarters. There was only one male over
the age of 40 selected for Administrative Officer in the Rocky Mountain
Office. The appellant contends that the agency was carrying out its
Multi-Year Affirmative Employment Program to increase the representation
of minorities and women in managerial positions by hiring more minorities
and women in administrative officer positions. He adds that the agency
engaged in a pattern of discrimination against employees over age 40
under a reorganization of the agency in which many older employees were
required to reapply for their jobs and then were not selected. Finally,
the appellant contends that he was more qualified than the selectee for
the position.
The agency countered stating that sixty percent of its selections for
the job of Administrative Officer went to persons over the age of 40 and
forty percent went to white females. It further stated that as of March
31, 1996, 81.91 percent of its employees at the GS-13 level and above of
the Western Area Power Administration were white males with an increase
from 1994 of .39 percent for minorities and .76 percent for white females.
The agency also argues that the statistics do not support the
appellant's contention that white males over the age of 40 have suffered
discrimination. It submitted statistics that purported to show that of
its 1,082 nonsupervisor/managers, 768 or 70.9 percent are over the age
of 40 and of the 189 supervisors/managers 158 or 83 percent, are over
the age of 40.
After a careful review of the record, when analyzed under the standards
expressed in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Loeb
v. Textron, 600 F.2d 1003 (1st Cir. 1979) we find no reason to overturn
the agency's finding of no discrimination.
First, although the agency is not correct that the appellant failed to
establish a prima facie case of race discrimination merely because the
selectee for the position in question was a member of the same protected
class as the appellant, we agree with the agency's finding of no race
discrimination on grounds discussed below . <1> The appellant successfully
established a prima facie case of age and sex discrimination in that
the selectee was female and under the age of 40.
The agency came forward with evidence of a legitimate non-discriminatory
reason for selecting the individual that it did through the testimony
of the selecting official as well as the statements of the interview
panel. He stated that the appellant rated a low "B" in his interview
with answers that showed an average grasp of the position compared to
others and only a shallow understanding of external factors affecting
the agency. The appellant also received a neutral reference from a
former supervisor who described him as an average personnel officer that
"put his 40 hours in".
Under the McDonnell Douglas analysis, the appellant must demonstrate
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. We agree with the agency
that the appellant failed in this aspect of his burden of proof.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the final agency
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
9/10/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1See, Dupree v.
United States Postal Service, Request No. 05960676,
(October 16, 1998), citing to EEOC Enforcement
Guidance Notice 915.002 September 18, 1996.