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