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)).