Ronald L. Fowler, Complainant,v.Bruce Babbitt, Secretary, Department of Interior, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01983659 (E.E.O.C. Mar. 24, 2000)

01983659

03-24-2000

Ronald L. Fowler, Complainant, v. Bruce Babbitt, Secretary, Department of Interior, Agency.


Ronald L. Fowler v. Department of Interior

01983659

March 24, 2000

Ronald L. Fowler, )

Complainant, )

) Appeal No. 01983659

v. ) Agency No. FWS97013R9

)

Bruce Babbitt, )

Secretary, )

Department of Interior, )

Agency. )

)

DECISION

Complainant filed a timely appeal from a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

basis of age (54), in violation of the Age Discrimination in Employment

Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The appeal

is accepted in accordance with EEOC Order No. 960.001. For the following

reasons, the Commission AFFIRMS the FAD as CLARIFIED herein.

The record reveals that during the relevant time, complainant was

employed as a GS-13 Program Analyst in the Division of Realty at the

agency's Fish and Wildlife Service, Arlington, VA. Complainant claims

that he was not selected for the following positions because of his age:

(1) Program Analyst, (September 1995); (2). Refuge Program Specialist,

(March 1996); and, (3). Refuge Program Specialist, (August 1996).

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint. At the conclusion of

the investigation, complainant requested that the agency issue its FAD.

Initially, the FAD found that complainant failed to make timely

EEO counselor contact regarding Position 1 and Position 2, noting

that it occurred long after the 45 day period set forth in 64

Fed. Reg. 37644,37656, (1999) (to be codified and hereinafter referred

to at 29 C.F.R. �1614.105(a)(1)). The FAD additionally determined that

complainant had not satisfied the conditions for excusing the untimely

contact under a continuing violation theory, and dismissed the claim as

to Position 1 and Position 2. Notwithstanding this determination, the FAD

also considered the entire claim on its merits, finding no discrimination.

In reviewing the agency's procedural determination, we find that

it properly dismissed that portion of the claim regarding Position 1

because it is not sufficiently related to the non-selection for Position

3 so as to justify waiving the untimely EEO counselor contact under a

continuing violation theory. Sanudo v. Social Security Administration,

EEOC Appeal No. 01985150 (August 31, 1999). In reaching this finding,

we note that these are different types of positions, and that each had a

different selecting official (SO). However, Position 2 and Position 3

concerned vacancies for the same position (Refuge Program Specialist),

and they each had the same SO. Consequently, we find that the FAD

improperly dismissed that portion of the claim regarding Position 2.

We CLARIFY the FAD accordingly.

Next, the FAD concluded that complainant established a prima facie

case of age discrimination regarding Position 3, but not Position

2, because he satisfied only "three elements"�apparently referencing

complainant's showing that he was over 40 years of age and qualified for

the position, but that a younger applicant (SE1) was instead selected.

In making this determination we assume that the FAD is suggesting that

complainant had the burden of establishing that age was a "determinative

factor" in order to establish a prima facie case. This is incorrect.

Instead, that question is addressed when the trier of fact makes a

decision on the ultimate issue of discrimination, and not at the prima

facie stage. Although the burden remains on complainant to demonstrate,

by a preponderance of the evidence, that age was a determinative factor

(in the sense that, "but for" his age he would not have been subjected

to the action at issue), it is not an element of the prima facie case

analysis. See Fodale v. Department of Health and Human Services, EEOC

Request No. 05960344 (October 16, 1998). Therefore, we find that the

complainant has established a prima facie case of age discrimination with

respect to Position 2 and Position 3, and we CLARIFY the FAD accordingly.

Regarding both positions, the FAD then determined that the agency

articulated legitimate nondiscriminatory reasons for its decision,

and that no evidence was offered by complainant to prove pretext.

In addressing Position 2, the FAD found that the vacancy was cancelled

due to budget concerns associated with a downsizing mandate, and then

filled non-competitively with a person of the same age group (48) as

complainant.<2> Concerning Position 3, the FAD determined that the

selectee (SE3) was significantly better qualified for the position and

that he was selected for this reason as well as because he had excellent

references, a good interview, more desirable work habits, and performed

his assigned duties better than complainant.

On appeal, complainant repeats his arguments, and also challenges the

credibility of the agency's witnesses and the authenticity of certain

affidavits, arguing that the agency's evidence should be discounted

accordingly. However, we note that complainant did not request a

hearing before an EEOC Administrative Judge in light of these concerns.

Furthermore, our review of the testimony on the record does not reflect

any significant inconsistencies such as to place its credibility into

question, and the failure of certain witnesses to sign their affidavits

appears to be inadvertent. The agency requests that we affirm its FAD.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973),and Loeb v. Textron, 600 F.2d

1003 (1st Cir. 1979), the Commission concurs with the FAD's finding

of no discrimination. Regarding Position 2, SO provides uncontested

testimony that he canceled the vacancy because of the danger of having

its funding cut off before it could be filled. Subsequently, he was able

to fill the position non-competitively with an employee who needed to

transfer from Hawaii, and whom he knew to have excellent qualifications.

Regarding Position 3, SO testified that complainant did not perform

well in the selection process, and that he was not impressed with the

quality of complainant's work, his work habits, or his work ethic, all

of which he was familiar with on a first hand basis. Witness testimony

corroborates SO's statements about complainant's poor work performance.

Furthermore, we find that SO's testimony suggests that he would not

have selected complainant for either of these positions based on his

first hand knowledge of his poor work performance, and the record is

devoid of any indication that age played a role in either non-selection.

Moreover, although complainant avers that he believes that he was not

selected for these positions because of his age, he provides no evidence

to substantiate this belief.<3>

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the FAD as

CLARIFIED.

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:

March 24, 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

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.

2In his appeal, complainant disputes that the selectee (SE2) was 48,

stating that he was instead 38 years old. Our review of SE2's personnel

documentation reveals that his date of birth is 9/11/57, making him 39

years old at the time of selection. Therefore, he is not in complainant's

protected group, and we CLARIFY the FAD accordingly.

3We note complainant told the investigator that he once heard that the

reviewing official for all three positions had made a remark reflecting

age animus. However, he could not provide any verifying details about

the circumstances of this remark, and as such, we discount it accordingly.