01986555
04-19-2000
Robert L. Green, Complainant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
Robert L. Green v. National Aeronautics and Space Administration
01986555
April 19, 2000
Robert L. Green, )
Complainant, )
)
v. ) Appeal No. 01986555
) Agency No. NCN-95-MSFC-A062
Daniel S. Goldin, )
Administrator, )
National Aeronautics and Space )
Administration, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. �621 et seq. The appeal is accepted by the Commission
in accordance with the provisions of 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. �1614.405).<1>
ISSUE PRESENTED
The issue presented is whether the agency discriminated against
complainant based on his age (59) when, on April 21, 1995, he was not
selected for the position of Supervisory AST, GS/GM-861-14, pursuant to
Vacancy Announcement No. 95-30-JB.
BACKGROUND
In a complaint dated August 29, 1995, complainant, then an Electrical
Engineer, GS-13, at the agency's Marshall Space Flight Center,
alleged that the agency discriminated against him as delineated in the
above-entitled statement "Issue Presented." The agency conducted an
investigation, provided complainant with a copy of the investigative
report, and advised complainant of his right to request either a hearing
before an EEOC administrative judge (AJ) or an immediate final agency
decision (FAD). It is not readily apparent whether complainant requested
an immediate FAD or did not respond with an election. In any event,
on July 31, 1998, the agency issued a FAD finding no discrimination.
It is from this decision that complainant now appeals.
ANALYSIS AND FINDINGS
This case involves a complaint alleging employment discrimination based
on age. In any proceeding, either administrative or judicial, involving
an allegation of discrimination, it is the burden of the complainant to
initially establish that there is some substance to his or her allegation.
In order to accomplish this burden the complainant must establish a
prima facie case of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). This means that the complainant must present
a body of evidence such that, were it not rebutted, the trier of fact
could conclude that unlawful discrimination did occur. The burden then
shifts to the agency to articulate a legitimate, non-discriminatory
explanation for its action. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). In this regard, the agency need only produce
evidence sufficient "to allow the trier of fact rationally to conclude"
that the agency's action was not based on unlawful discrimination. Id. at
257. Once the agency has articulated such a reason, the question becomes
whether the proffered explanation was the true reason for the agency's
action, or merely a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of production,
in other words, "going forward," may shift, the burden of persuasion, by
a preponderance of the evidence, remains at all times on the complainant.
Burdine, 450 U.S. at 256. This analysis, developed in the context of
Title VII proceedings, also applies to cases arising under the ADEA.
Jackson v. Sears, Roebuck & Co., 648 F.2d 225 (5th Cir. 1981).
Complainant has established a prima facie case of age discrimination.
He is a member of the protected group, age (over 40), and he was
neither referred for final consideration nor selected for the position
in question, while a number of persons either outside of his protected
group or substantially younger than he were referred on, and ultimately
one (the selectee, age 42) was selected for the position.
The burden now shifts back to the agency to proffer a legitimate,
non-discriminatory explanation for its actions. The agency has explained
that all qualified applicants, including complainant, were referred
to a rating panel which consisted of a Personnel Specialist (age 45);
an Aerospace Engineer (age 61); and a Supervisory Aerospace Engineer
(age 61). The panel rated all of the applicants on the same criteria,
averaged the applicants' scores, and referred on as "best qualified" all
applicants whose average score exceeded 93.66 points. After conducting
interviews of the best-qualified applicants, the selecting official
(age not specified) ultimately selected the selectee.
The Personnel Specialist explained the process by which the ratings
were established, and noted that one of the raters, the Supervisory
Aerospace Engineer, tended to rate all of the applicants lower than did
the Personnel Specialist or the Aerospace Engineer. The record reflects
that complainant was rated as follows: the Personnel Specialist, 94;
the Aerospace Engineer, 94; the Supervisory Aerospace Engineer, 88.
The Supervisory Aerospace Engineer offered the following explanation for
the score he awarded complainant. The Supervisory Aerospace Engineer
stated that complainant's write-up of his qualifications was very brief,
and that complainant didn't elaborate on the knowledge, skills, and
abilities (KSAs) for the position. The Supervisory Aerospace Engineer
stated that he had some knowledge of complainant's background because they
had known each other for some years. The Supervisory Aerospace Engineer
opined that complainant was a very hard worker and a good engineer,
but that he was not cut out to be a Branch Chief<2> or leader. The
Supervisory Aerospace Engineer stated that the brevity of complainant's
statements in his application indicated to him that complainant would not
be willing to take the time to write job descriptions, performance plans,
and appraisals. The Supervisory Aerospace Engineer opined that every
good engineer is not cut out to be a leader, and that good engineers
do not like to write. The Supervisory Aerospace Engineer stated that
there had been other Branch Chiefs in the past who were good engineers,
but they did not like to write and it was like pulling teeth to get them
to do it. The Supervisory Aerospace Engineer acknowledged that this
thought may have been in the back of his mind when he rated complainant.
The foregoing explanation is sufficient to meet the agency's burden.
The burden now shifts back to complainant to establish that the agency's
proffered reason is not the true reason for its actions, but is merely a
pretext for unlawful discrimination. In this regard, two circumstances
cast serious doubt upon the agency's proffered explanation. First,
when questioned with regard to age as a factor in the rating process,
the Supervisory Aerospace Engineer stated:
A lot of people retire on the job. Some people get tired and worn out,
especially as they get older; they get less motivated. Motivation has
a lot to do with it. If there is a supervisory position vacant and
the candidate applied who is not going to be motivated then you select
the person who is going to be motivated. So, to some degree age may be
a factor.
The Supervisory Aerospace Engineer concluded that this was not the case
with complainant, because complainant was motivated. Nonetheless,
the Commission finds troubling the Supervisory Aerospace Engineer's
blanket assertion correlating age and motivation. While this statement,
without more, might not be sufficient to rebut the agency's proffered
explanation, further support of complainant's position is found in
a closer examination of the scores assigned to the applicants by the
rating panel, and by the Supervisory Aerospace Engineer in particular.
The ages of the qualified applicants who were rated by the panel fall into
two groups: ages 33 to 45, and ages 52 to 61. Of those applicants aged
33 to 45, only two � a 33-year-old and a 39-year-old � failed to score
high enough to be referred for interviews. Of those applicants aged 52
to 61, none scored high enough to be referred for an interview. Further,
and more tellingly, in the group aged 33 to 45, with only one exception
(a 33-year-old who also received the identical low score from the
Aerospace Engineer) the Supervisory Aerospace Engineer's ratings varied
from those of the Personnel Specialist and the Aerospace Engineer by an
average of -0.83 points, and by no more than �3 points.<3> By contrast,
in the group aged 52 to 61, the Supervisory Aerospace Engineer's ratings
varied from those of the Personnel Specialist and the Aerospace Engineer
by an average of -6.9 points, ranging from a minimum of -4 points to
a maximum of -12 points. While the Commission does not substitute
its judgment for that of agency officials charged with carrying out a
selection process, the disparity in the raters' scores, coupled with
the Supervisory Aerospace Engineer's comments, leads the Commission to
conclude that age was a factor in the Supervisory Aerospace Engineer's
ratings of the applicants, tainting the selection process as a whole.
When discrimination is found, the agency must provide the complainant
with an equitable remedy that constitutes full, "make whole" relief.
See, e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976);
Adesanya v. U.S. Postal Service, 01933395 (July 21, 1994). To avoid
providing a remedy, the agency must show by clear and convincing evidence
that even absent discrimination, the complainant would not have received
the benefit sought. 29 C.F.R. �1614.501(c)(2); see Day v. Mathews,
530 F.2d 1083 (D.C. Cir. 1976). In this case, the Commission finds that
"make whole" relief consists of retroactive placement in the position at
issue, or a substantially equivalent position. See Pryor v. U.S. Postal
Service, EEOC Appeal No. 01961884 (February 5, 1998), req. to reopen den.,
EEOC Request No. 05980405 (August 6, 1999).
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
REVERSE the final agency decision.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
(1) Within thirty (30) days of the date on which this decision becomes
final, the agency shall offer complainant retroactive placement in the
position of Supervisory AST, GS/GM-861-14, or a substantially equivalent
position, at its Marshall Space Flight Center. Complainant shall be
afforded no fewer than five (5) business days to decide whether to accept
the offer. Should complainant reject the offer, his entitlement to back
pay and benefits shall cease as of the date of rejection.
(2) The agency shall provide EEO training to the Personnel Specialist,
the Aerospace Engineer, and the Supervisory Aerospace Engineer.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 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."
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.
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).
POSTING ORDER (G1092)
The agency is ORDERED to post at its Marshall Space Flight Center 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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 (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
Date
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _____________ which found that
a violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. �621 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that 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 National Aeronautics and Space Administration, Marshall Space
Flight Center, supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The National Aeronautics and Space Administration, Marshall Space
Flight Center, has been found to have discriminated against the
individual affected by the Commission's finding. The National
Aeronautics and Space Administration, Marshall Space Flight Center,
shall retroactively place the affected individual in the position
for which he was non-selected on account of unlawful discrimination,
or a substantially equivalent position, and shall provide EEO training
for the agency officials who participated in the rating panel for the
selection at issue. The National Aeronautics and Space Administration,
Marshall Space Flight Center, 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 and will not retaliate against employees who file EEO complaints.
The National Aeronautics and Space Administration, Marshall Space
Flight Center, 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
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.
2This is apparently the working title for the position in question.
3The greatest disparity between the scores awarded by the Supervisory
Aerospace Engineer versus the Personnel Specialist and the Aerospace
Engineer in the younger age group was -6 (the 33-year-old also low-rated
by the Aerospace Engineer), which was included in the averaging. If the
-6 score is omitted from the averaging, the average disparity drops to
-0.56 points.