Steven E. Stewart, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 22, 1999
01970630 (E.E.O.C. Sep. 22, 1999)

01970630

09-22-1999

Steven E. Stewart, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Steven E. Stewart v. Department of Veterans Affairs

01970630

September 22, 1999

Steven E. Stewart, )

Appellant, )

)

v. ) Appeal No. 01970630

) Agency No. 95-1615

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

On October 26, 1996, Steven E. Stewart (hereinafter referred to as

appellant) filed a timely appeal from the October 17, 1996, final decision

of the Department of Veterans Affairs (hereinafter referred to as the

agency) concerning his complaint of unlawful employment discrimination

in violation of the Age Discrimination in Employment Act (ADEA) of

1967, as amended, 29 U.S.C. �621 et seq. The appeal is timely filed

(see 29 C.F.R. �1614.402(a)) and is accepted in accordance with EEOC

Order No. 960, as amended. For the reasons that follow, the agency's

decision is AFFIRMED.

The issue presented in this appeal is whether the appellant has proven,

by a preponderance of the evidence, that the agency discriminated against

him on the basis of age (DOB 6-28-44) when he was not selected for the

position of Supervisory Medical Technician, GS-7, on March 20, 1995.

Appellant, a Medical Technician, GS-5, worked at the agency's Medical

Center (MC) in Marion, Indiana, and applied for the position of

Supervisory Medical Technician at the Indianapolis MC. He was not

selected in favor of a younger applicant (33) (E1). Agency managers

stated that E1 was selected based on his supervisory experience and work

experience in larger hospital settings, whereas appellant worked in a

smaller hospital and never held a supervisory position.

Appellant asserted that he was more qualified because he held certain

certifications from the agency and that agency managers failed to give

proper consideration to his certifications. In its decision, the agency

found that appellant, in response to the agency's articulated reason,

failed to demonstrate that the agency's explanation for its selection

was not worthy of belief. In his appeal statement, appellant informs

that E1 has left the position and repeats his assertion that he was

more qualified. The agency did not submit comments in response to

appellant's appeal.

Generally, claims alleging disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corporation

v. Green, 411 U.S. 792 (1973). See Loeb v. Textron, Inc., 600 F.2d 1003

(1st Cir. 1979). Following this established order of analysis in the

matter before us, we examine the agency's explanation in response to

appellant's prima facie case. Agency managers explained that expanded

duties mandated an additional supervisor and that it sought a person

with supervisory experience who would require minimal training. Further,

they stated that E1 had one year of supervisory experience, background

in the field, and worked in large hospital settings similar to the

Indianapolis MC. We find that the agency articulated a legitimate,

nondiscriminatory reason for its action.

In the third step of the McDonnell Douglas analysis, appellant must

demonstrate by a preponderance of the evidence that the agency's actions

were motivated by discrimination, that is, its articulated reason was a

sham or pretext for discrimination. Texas Department of Community Affairs

v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993). Under the ADEA, the appellant must show that his age

was a determining factor in the agency's decision, that is, considerations

of age made a difference in the agency's selection decision. Hazen Paper

Company v. Biggins, 507 U.S. 604, 610 (1993) (age had "a role in the

process and a determinative influence on the outcome").

Appellant's argument that his age was a factor because E1 was younger is

not sufficient to demonstrate pretext. Other than his claim to superior

qualifications, appellant has not presented evidence that showed a bias

or animus against him based on his age, nor has he demonstrated that the

agency's explanation for its selection decision was not its real reason.

Further, the certifications described by appellant were not among the

hiring criteria and therefore did not render him more qualified than E1.

We find that appellant did not show that the agency's stated reasons were

not its true reasons or that it was motivated by a prohibited factor,

i.e., appellant failed to demonstrate that the agency's reasons for its

actions were pretextual. For these reasons, we find that the agency

did not discriminate against appellant.

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

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 this

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. �l6l4.604(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 this 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 this 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 this 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:

September 22, 1999

DATE Carlton Hadden, Acting Director

Office of Federal Operations