Ted L. Aragon, Complainant,v.Donna A. Tanoue, Chairperson, Federal Deposit Insurance Corp., Agency.

Equal Employment Opportunity CommissionJan 21, 2000
01971846 (E.E.O.C. Jan. 21, 2000)

01971846

01-21-2000

Ted L. Aragon, Complainant, v. Donna A. Tanoue, Chairperson, Federal Deposit Insurance Corp., Agency.


Ted L. Aragon v. Federal Deposit Insurance Corp.

01971846

January 21, 2000

Ted L. Aragon, )

Complainant, )

)

v. )

) Appeal No. 01971846

Donna A. Tanoue, ) Agency No. RTC 93-28

Chairperson, )

Federal Deposit Insurance Corp., )

Agency. )

_________________________________)

DECISION

Complainant timely appeals the final agency decision ("FAD") concerning

his complaint of unlawful employment discrimination, in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq.; the Age Discrimination in Employment Act ("ADEA") 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.<1> This appeal is accepted in

accordance with EEOC Order No. 960.001.

ISSUES PRESENTED

Whether complainant has demonstrated by a preponderance of the evidence

that the agency discriminated against him on the bases of his national

origin (Hispanic), disability (hearing loss), age, (DOB 9/25/44) and

reprisal (prior EEO activity) when he was not selected for any of six

positions with the agency.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Senior Regional Attorney at the agency's Denver Regional office.<2>

On August 20, 1992, complainant submitted his SF-171 job application

("SF 171") for agency vacancy announcement RTC-2-116. The announcement

advertised four separate Section Chief positions within the Denver office.

On December 1, 1992, complainant submitted his SF-171 in response to

agency vacancy announcement number RTC-2-ER14. The announcement sought

applications for two Senior Counsel positions in the Denver office.

The Assistant General Counsel ("AGC") (non-Hispanic, DOB 5/22/57, not

disabled) was the leader of the selection committee that reviewed the

applications and interviewed the applicants for each announcement.

On December 10, 1992, four individuals ("S1," "S2," "S3" and "S4")

were selected for the Section Chief positions. On March 31, 1993,

the committee selected only one applicant ("S5") in response to the two

Senior Counsel vacancies.<3>

Believing that he was the victim of discrimination, complainant

sought EEO counseling and, thereafter, filed a formal EEO complaint on

April 27, 1993. By notice dated August 23, 1993, the agency informed

complainant that his complaint had been accepted for investigation.

At the conclusion of the investigation, the agency forwarded a copy of

the investigative report to complainant explaining that he could request

a hearing before an EEOC Administrative Judge within 30 days or receive

a final agency decision without a hearing. The complainant timely

requested a hearing, but failed to appear on the scheduled date. At the

request of complainant, the agency issued its FAD on November 22, 1996.

In its FAD, the agency first found that complainant's allegations

concerning nonselections occurring in 1990 and 1991<4> were time barred

because he did not initiate EEO counseling within thirty (30) days of

the alleged discriminatory acts.<5> As for the Section Chief positions,

the agency found that complainant established prima facie cases of

national origin discrimination. In addition, the agency found that

complainant established prima facie cases of national origin and reprisal

discrimination with regards to the Senior Counsel position. However, the

agency found that complainant failed to establish prima facie cases of age

and disability discrimination because all of the selectees were over the

age of forty (40) and within five years of complainant's age, and because

complainant failed to provide any evidence substantiating his hearing loss

or demonstrating that the agency was aware of his alleged disability.

The agency then concluded that the AGC had articulated legitimate,

nondiscriminatory reasons explaining why complainant was not selected

for any of the disputed positions; namely, that the selectees were better

qualified than complainant. Finally, the agency found that complainant

failed to demonstrate that the AGC's explanations for his nonselections

were a pretext for unlawful discrimination. It is from this decision

that complainant now appeals. The agency requests that we affirm its FAD.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII, Rehabilitation

Act, or ADEA case alleging discrimination is a three-step process.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); Prewitt

v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981)(burdens of

proof in disparate treatment claims brought pursuant to Rehabilitation

Act are modeled after those used in Title VII); Loeb v. Textron, Inc.,

660 F.2d 1003 (1st Cir. 1979) (applying the McDonnell Douglas scheme to

cases brought under the ADEA). Complainant has the initial burden of

establishing a prima facie case of discrimination. McDonnell Douglas,

411 U.S. at 802. If complainant meets this burden, then the burden shifts

to the agency to articulate some legitimate, nondiscriminatory reason for

its challenged action. Texas Dep't of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). 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 pretext for discrimination. Id. at 256.

I. Title VII Claims

A. Prima Facie Case

Complainant can establish a prima facie case of national origin or

reprisal discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination. Shapiro

v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996)

(citing McDonnell Douglas, 411 U.S. at 802). In general, complainant

can establish a prima facie case of national origin discrimination

by showing: (1) that he is a member of a protected group; (2) that he

was qualified for the positions; (3) that he was not selected for the

positions; and (4) that the selectees were not members of complainant's

protected group. McDonnell Douglas, 411 U.S. at 802. The Commission

finds that complainant has established a prima facie case of national

origin discrimination because: (1) he was a member of a protected group,

Hispanic; (2) he was qualified for the positions, as evident from his

placement on the Roster of Eligibles for both vacancy announcements; (3)

he was not selected for any of the positions; and (4) the selectees were

all non-Hispanic and thus not members of complainant's protected group.

In a reprisal claim, according with the burdens set forth in McDonnell

Douglas, and Hochstadt v. Worcester Foundation for Experimental Biology,

425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), complainant may establish a prima facie case of

reprisal by showing that: (1) he engaged in Title VII protected activity;

(2) the agency was aware of his protected activity; (3) subsequently,

he was subjected to adverse treatment by the agency; and (4) a nexus

exists between the protected activity and the adverse action. We agree

with the agency that complainant has established a prima facie case of

reprisal discrimination in that he initiated the EEO process prior to his

nonselection for the Senior Counsel position, the agency was aware of his

EEO activity, and his nonselection occurred shortly after his initiation

of the process. However, complainant has not established a prima facie

case of reprisal discrimination with regards to Section Chief positions

because he had not engaged in Title VII protected activity prior to the

selections for these positions.

B. Legitimate, Nondiscriminatory Reason

After complainant establishes a prima facie case of discrimination,

the burden now shifts to the agency to articulate a legitimate,

nondiscriminatory reason for not selecting complainant. Burdine, 450

U.S. at 253. The agency through the AGC stated that complainant was

not selected for the disputed positions because the selectees in each

case were more qualified than complainant. The selection committee

selected S1 (non-Hispanic, DOB 11/25/42, not disabled) to become the

Section Chief for the Litigation Branch. The agency stated that S1

had previously served as Acting Deputy Managing Attorney in the Phoenix

office, and prior to joining the agency, had been a partner in a law firm

and in-house counsel for a corporation. Complainant failed to present

evidence demonstrating that his experience was equivalent to that of S1.

The Section Chief position for the Bankruptcy Branch went to S2, who had

served as bankruptcy coordinator for the Denver office and had worked

for several firms specializing in bankruptcy. Complainant provided

no evidence establishing that his bankruptcy experience was parallel

to that of S2. S3 became the new Section Chief for one of the Asset

Disposition Branches. He had served as the acting Section Chief prior

to assuming the position permanently. The other Section Chief position

for the Asset Disposition Branch went to S4, who had served as a staff

attorney in the Asset Disposition Branch and had previously been General

Counsel for a mortgage banker corporation. Complainant presented no

evidence illustrating that he had equivalent asset disposition experience.

Finally, the agency stated that it selected S5 for the Senior Counsel

position. The agency noted that S5 had prior Section Chief experience in

the Phoenix office, and that since he was transferring from Washington,

D.C., his selection would not create a new vacancy within the Denver

Office. Complainant failed to present evidence demonstrating that his

experience was equal to that of S5. The Commission finds that the agency

has articulated legitimate, nondiscriminatory reasons explaining why

complainant was not selected for the positions in question.

C. Pretext for Discrimination

Because the agency has articulated legitimate, nondiscriminatory reasons

for its selection decision, the burden reverts back to the complainant to

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

are a pretext for discrimination. . Shapiro, supra. Complainant can

do this by showing that a discriminatory reason motivated the agency.

Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

After a thorough review of all the evidence of record, the Commission

finds that complainant has failed to meet his burden of establishing,

by a preponderance of the evidence, that the agency's reasons for

his nonselections were a pretext masking national origin or reprisal

discrimination. We note that, while complainant was qualified for the

disputed positions, the selection committee accorded more weight to the

experience of the selectees, and due to complainant's lack of equivalent

experience determined that complainant was not as qualified as the

selectees. Complainant has failed to show that his qualifications are

observably superior to that of the selectees. See Vanek v. Department

of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997)(citing

Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981)). Consequently,

complainant has failed to demonstrate that the nonselections in this

case were rooted in discriminatory animus toward his national origin.

As for reprisal discrimination, complainant points to the fact that the

AGC informed his EEO Counselor prior to the Senior Counsel selection that

she would not select complainant for the position because he came to

the interview with a chip on his shoulder, and believed that he should

be given the position because he is a minority. The EEO Counselor's

report indicates that, when asked if complainant would received the

pending Senior Counsel position, the AGC stated that complainant had a

flat interview, came in with a chip on his shoulder and believed that

the position should be given to him simply because he was a minority.

The EEO Counselor's report further indicates that the AGC stated that

the Senior Counsel position and all other positions would be offered

to the most qualified candidate, including any minority individual.

After reviewing the context of the AGC's statements, we find that the

statements do not support complainant's contention that his nonselection

for the Senior Counsel position occurred in reprisal for his initiating

the EEO process.

II. Rehabilitation Act Claim<6>

Under the Commission's regulations, an agency is required to make

reasonable accommodations for the known physical and mental limitations

of a qualified individual with a disability unless the agency can show

that accommodation would cause an undue hardship. 29 C.F.R. � 1630.2(o)

and (p). A "person with a disability" is one who: 1) has a physical or

mental impairment that substantially limits or restricts one or more of

his or her major life activities; 2) has a record of such impairment;

or (3) is regarded as having the impairment. 29 C.F.R. � 1630.2(g).

Major life activities include functions such as self care, performing

manual tasks, walking, seeing, hearing, speaking, breathing, learning,

and working. 29 C.F.R. � 1630.2(i).

To establish a prima facie case of disability discrimination, complainant

must show that: (1) he is an individual with a disability as defined

in 29 C.F.R. � 1630.2(g); (2) he is a "qualified" individual with

a disability as defined in 29 C.F.R. � 1630.2(m); and (3) the agency

took an adverse action against him. Cansino v. Department of the Army,

EEOC Request No. 05960674 (Aug. 27, 1998)(citing Prewitt, supra).

As to whether complainant is an individual with a disability, complainant

failed to present any evidence concerning his disability. In addition,

the SO credibly stated that, prior to the filing of his complaint, neither

she nor complainant's supervisors were aware of his alleged disability.

Since the record lacks sufficient evidence to show that complainant is

an individual with a disability, the Commission finds that he failed to

establish a prima facie case of disability discrimination.

C. ADEA Claim

In an ADEA case, complainant may establish a prima facie case by showing

that he is in the protected group (over 40), and was treated less

favorably than other similarly situated employees outside his protected

group. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 878

(1996). However, unlike in a Title VII case, in order to prevail in an

ADEA case, complainant must demonstrate that age was a determinative

factor, and not simply a factor, in the adverse employment action.

Bell v. Department of Veterans Affairs, EEOC Request No. 05950863

(Sept. 17, 1997)(citing Loeb, supra).

In this case, complainant has failed to establish a prima facie case of

age discrimination. While complainant is within the ADEA's protected

group, the selectees in this case are basically the same age as

complainant, and in some instances are actually older. See Ganschow

v. Department of the Army, Request No. 05930814 (Mar. 4, 1994).

Moreover, complainant presents no evidence to demonstrate that age was

a determinative factor or even a consideration in his nonselections.

Therefore, the Commission finds that complainant has not shown that the

agency unlawfully considered his age when filling the multiple vacancies.

CONCLUSION

Accordingly, based on a thorough review of the record, and for

the foregoing reasons, it is the decision of the Equal Employment

Opportunity Commission to AFFIRM the agency's final decision finding

no discrimination.

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:

January 21, 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

1 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.

2 Complainant worked for a now defunct branch of the agency, the

Resolution Trust Corporation.

3 The record provides no explanation as to why only one of the two

vacancies was filled.

4 Complainant provides no specific facts or vacancy announcements to

identify these alleged positions.

5 EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO counselor within 45 days of

the date of the matter alleged to be discriminatory or, in the case

of a personnel action, within 45 days of the effective date of the

action. As part of his complaint, complainant listed nonselections

that occurred in 1990 and 1991. However, complainant did not initiate

EEO contact until January 14, 1993 and failed to present sufficient

evidence demonstrating that the combination of all the nonselections

constituted a continuing violation. See Berry v. Board of Supervisors,

715 F. 2d 971, 981 (5th Cir. 1983) cert. denied, 479 U.S. 868 (1986);

Vissing v. Nuclear Regulatory Comm'n, EEOC Request No. 05890308 (June

13, 1989). As a result, we agree with the agency and find the 1990 and

1991 nonselections untimely.

6 Pursuant to the Rehabilitation Act Amendments of 1992, the Americans

with Disabilities Act's employment standards apply to all non-affirmative

action employment discrimination claims filed by federal applicants or

employees with disabilities under Section 501 of the Rehabilitation Act.

Pub. L. No. 102-569 � 503(b), 106 Stat. 4344 (1992)(codified as amended

at 29 U.S.C. � 791(g)(1994)).