01a03501
08-02-2000
Rudolph M. Hyde, III v. Department of the Treasury 01A03501 08-02-00 . Rudolph M. Hyde, III, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Rudolph M. Hyde, III v. Department of the Treasury
01A03501
08-02-00
.
Rudolph M. Hyde, III,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A03501
Agency No. TD 97-2066
DECISION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the
agency concerning his allegation that the agency violated the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621 et
seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et
seq.<0> The appeal is accepted by the Commission in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein is whether the complainant has established
that the agency discriminated against him based on age (42) and mental
disability (anxiety disorder, depression) when he was not selected
for promotion into the position of Criminal Investigator, GS-1811-13,
in July 1996.
BACKGROUND
During the period in question, the complainant was employed as a
Criminal Investigator, GS-1811-12, in the agency's Southeast Region.
In February 1996, the complainant applied for promotion to the GS-13
level (the Position). The record reveals that there were vacancies
for the Position in three of the agency's Florida offices, including
Miami, Sunrise, and West Palm Beach. The complainant's application was
subsequently rated by a three-member panel and he received a score of
28, which was eighth-highest for Miami, eleventh-highest for Sunrise,
and sixth-highest for West Palm Beach. The record reveals that, for
each of these vacancies, no more than five candidates were considered
�best qualified.�<2> Because the complainant was not among the �best
qualified� candidates for any of the three offices, he was not referred
for further consideration.
The complainant filed a formal complaint in December 1996 in which he
raised the issue identified above. Following an investigation, the
complainant requested a hearing but subsequently withdrew that request.
The agency thereafter issued a final agency decision (FAD) on March 22,
2000, finding no discrimination. It is from this decision that the
complainant now appeals.
ANALYSIS AND FINDINGS
Age Discrimination
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a claim brought
under the Age Discrimination in Employment Act is patterned after the
three-step process set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
The complainant has the initial burden of establishing a prima facie case
of discrimination. If the complainant meets this burden, then the burden
shifts to the agency to articulate some legitimate, nondiscriminatory
reason for its challenged action. The complainant must then prove, by a
preponderance of the evidence, that the legitimate reason articulated by
the agency was not its true reason, but was a pretext for discrimination.
Initially, the Commission finds that the complainant is able to
establish a prima facie case based on age. In so finding, we note that
two of the four individuals selected for the Position were nonmembers
of the complainant's age group. See Bundy v. Jackson, 641 F.2d 934
(D.C. Cir. 1981).
Because the complainant has established a prima facie case, the agency
has the burden of articulating a legitimate, nondiscriminatory reason
for the challenged action. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). As discussed, the agency's position is that
the reason the complainant was not selected for the Position was because
he did not receive a high enough rating to be deemed one of the �best
qualified� candidates. Moreover, one of the panelists cited a number
of reasons why the complainant's rating was not higher, including that
he did not include a narrative regarding independent case development
and did not indicate what, if any, innovative techniques he had used
in completing investigations. Based on the foregoing, the Commission
finds that the agency has met its burden of production.
At this point, the complainant bears the burden of establishing that the
agency's articulated reason is a mere pretext for discrimination. The
complainant can do this either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at
256. In a non-selection case, pretext may be demonstrated where
the complainant's qualifications are shown to be plainly superior to
those of the selectee(s). Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). An employer, however, has the discretion to choose among
equally qualified candidates. Canham v. Oberlin College, 666 F.2d 1057,
1061 (6th Cir. 1981).
In this case, we find that the complainant has not established pretext.
In so finding, we note that
the complainant has offered nothing which suggests that his non-selection
was related to his age, and, in this regard, each of the three panelists
stated that they were not aware of the complainant's age at the time they
rated his application. Furthermore, the complainant has not demonstrated
that his qualifications for the Position were �plainly superior� to those
of the individuals deemed �best qualified� and/or ultimately selected.
Accordingly, the Commission finds that the complainant has not established
that he was discriminated against based on age.
Disability Discrimination
Assuming, for purposes of this analysis, that the complainant could
demonstrate that he is an �individual with a disability,� we have already
found that the agency articulated a legitimate, nondiscriminatory reason
for the complainant's non-selection. Not only has the complainant not
demonstrated that this reason is unworthy of credence, but he has offered
nothing suggesting that his non-selection was related to his disability.
Accordingly, the Commission finds the complainant has not established
that he was discriminated against based on disability.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
__08-02-00________________
Date
01 On 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.
2The scores of the �best qualified� candidates ranged from 32 to 35.