01981921
08-21-2000
Vincent Velotta, et al., Complainants, v. Janet Reno, Attorney General, Department of Justice, (Drug Enforcement Agency), Agency.
Vincent Velotta, et al. v. Department of Justice
01981921
August 21, 2000
.
Vincent Velotta, et al.,
Complainants,
v.
Janet Reno,
Attorney General,
Department of Justice,
(Drug Enforcement Agency),
Agency.
Appeal No. 01981921
Agency No. D-95-3289
DECISION
Complainants timely initiated an appeal of a final agency decision (FAD)
concerning their complaints of unlawful employment discrimination on the
basis of age (age 50 or over), in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
Complainants allege they were discriminated against when they were not
selected for promotion to GS-15 positions.<2> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). For the following reasons, the Commission AFFIRMS
the FAD.
The record reveals that during the relevant time, complainants were
employed at the agency's Headquarters in Washington, D.C. Complainants
claim that despite their qualifications, candidates for promotion to GS-15
positions under age 50 were treated more favorably by the agency than
were candidates over 50. Complainant 1 (C1; age 56), a GS-14 Special
Agent (SA), alleged that between fiscal years 1988 and 1994 he applied
for promotion to over forty GS-15 positions and made the best qualified
list for most of those vacancies, but the agency's Career Board did not
select him for any of these positions due to his age. Complainant 2
(C2; 58) claimed that although he was promoted to a GS-15 Section Chief
position at DEA Headquarters in 1997, he previously applied for promotion
to GS-15 positions and was interviewed several times but was not selected.
C2 claimed that he felt his chances for promotion to GS-15 decreased as he
approached age 50 and his chance �virtually disappeared� after turning 50.
Complainant 3 (C3; 58) was promoted to a GS-15 Assistant SA-in-Charge
position in Columbia, South Carolina in 1995. C3 claimed that he applied
for 57 GS-15 positions since 1988 and made the best qualified list for
many of these vacancies before being selected for his current position.
C3 claimed that the agency did not select him for a GS-15 position
prior to May of 1995 due to age discrimination, as the agency believed
that agents age 50 and over should retire when eligible in order to let
younger agents those positions. The record also reflects that several
other employees at the agency testified that agents over age 50 had very
poor chances for promotion to the GS-15 level.
Believing they were victims of discrimination, complainants sought EEO
counseling and, subsequently, C1 filed a complaint on January 18, 1995,
with C2 and C3 filing complaints on January 23, 1995. The complaints were
accepted and consolidated, and at the conclusion of the investigation,
complainants received copies of the investigative report and were advised
of their right to request a hearing before and EEOC Administrative Judge,
but instead requested that the agency issue a FAD.
The FAD initially found that the only selections relevant to complainant's
claims were those filled by promoting GS-14 candidates after the
complainants reached age 50. The FAD identified eleven (11) agency
vacancy announcements which were filled by promoting GS-14 candidates to
GS-15 positions, in which one or more of the complainants was age 50 or
older and made the best qualified list. The FAD concluded that C2 failed
to demonstrate a prima facie case of age discrimination as he failed to
be placed on the best qualified list for any of the eleven (11) vacancies
at issue in the instant case. In so finding, the FAD noted that of the
candidates who applied for promotions to GS-15 positions, only those who
made the best qualified lists were considered by the Career Board for
promotion, and based on his relative qualifications C2 was not selected
to be on the best qualified lists at issue. The FAD further found that
while C2 was placed on the best qualified list for Vacancy Announcement
No. 92-07 in 1992, he did not turn 50 until after the selection decision
was made, and further, the selectee was the same age as complainant.
The FAD further found that the totality of the record failed to
demonstrate that the agency discriminated against C1 and C3 on the basis
of age when they were not selected for any of the eleven promotions at
issue in the instant case. In so finding, the FAD noted that the agency
promoted candidates who were the same age, or close to the same age as
complainants for many of the positions, and of the selectees who were
�significantly� younger than complainants, the FAD found that age did
not play a role in their promotion. Further, the FAD noted that the
statistics provided by complainants to show age bias by the agency did
not reliably support their claim due to �faulty data.� As a result, the
FAD found that C1-C3 failed to establish that they were discriminated
against on the basis of age when they were not selected for promotion
to GS-15 positions. On appeal, complainants contend that the agency
failed to consider a number of their arguments. The agency requests
that we affirm its FAD.
In an ADEA case, complainant may establish a prima facie case by showing
that he is in the protected group (over age 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)(stating that an inference of discrimination cannot be drawn
when the selectee is "insignificantly younger" than the complainant);
Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp., EEOC
Notice No. 915.002 (September 18, 1996); Tarrell v. Department of Housing
and Urban Development, EEOC Appeal No. 01961030 (October 25, 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
in the adverse employment action. The Commission finds that C2 is in the
protected group and was not selected for any of the positions in favor of
younger applicants. However, assuming, arguendo, that C2 has established
a prima facie case, the agency has presented a nondiscriminatory reason
for its actions, namely C2 was not selected as he was not placed on the
best qualified list for any of the eleven positions at issue. We find
that C2 has not presented evidence of pretext, and thus find that C2 has
not shown, by a preponderance of the evidence, that he was discriminated
against on the basis of age.
In addition, we find that C1 and C3 failed to establish a prima facie
case of age discrimination regarding their nonselections for Vacancy
Announcement Nos. 92-94, 93-256 and 94-319, as the selectees for these
positions were the same age or older than the complainants. O'Connor,
supra. However, we find that C1 and C3 established a prima facie case of
age discrimination regarding their nonselections for the remaining eight
positions at issue, as they were older than age 40, were qualified for
the positions and were not selected in favor of significantly younger
applicants.
Under the ADEA, however, complainant's ultimate burden is to
establish that age was a determining factor in his nonselection.
Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); Fodale v. Department of
Health and Human Services, EEOC Request No. 05960344 (October 16, 1998).
After consideration of the evidence, we find that the agency articulated
legitimate, nondiscriminatory reasons for its failure to promote C1 and C3
to any of the eight positions for which they established prima facie cases
of age discrimination. The record shows that the selecting officials
took several factors into consideration, and there is no evidence to
suggest that the age of the candidates was one of these factors. The
evidence establishes that regarding the eight positions for which C1
and C3 were placed on the best qualified lists but were not selected
in favor of younger candidates, the Career Board gave great weight to
the preferences of the management officials in whose office the vacancy
existed, and in ten of the eleven selections at issue, the manager's
preference was a primary factor cited in the promotion of a candidate from
the best qualified list. Specifically, the agency produced persuasive
affidavit testimony that in these ten cases, the selectees were chosen
as they were known to the recommending officials rather than due to
their age. In addition, in the only selection in which the affected
management officials recommendations were not followed by the Career
Board, the selectee was not significantly younger than C1 and was chosen
due to the settlement of a class action lawsuit which provided for the
promotion of qualified women to upper class management positions.
Although C1 and C3 assert that they were more qualified than the other
candidates, complainants have not shown that age was the determining
factor in the agency's decisions. As evidence of pretext, we note
that the EEO Investigator provided statistical evidence to indicate
a disparity between the percentage of qualified applicants ages 50
and over and the percentages of agents ages 50 and over selected for
GS-15 positions. The FAD found that the statistical evidence was
unreliable for two reasons: (1) the Investigator based his statistics
on data that included GS-15 positions filled through lateral transfers,
rather than focusing exclusively on data concerning the promotion of
GS-14 applicants to GS-15 positions; and (2) the Investigator failed to
account for non-discriminatory factors affecting selection decisions which
may have tracked the age of the agents, such as failing to account for
applicants who repeatedly apply for GS-15 positions. After consideration
of the statistical evidence, we agree with the FAD's finding that this
evidence is not sufficiently strong to lead to the conclusion that the
agency discriminated against complainants due to their age. Bazemore
v. Friday, 478 U.S. 385 (1985). The Commission finds that the flaws with
the statistical evidence render it less probative than it might have been,
and as such this evidence fails to prove that it was more likely than not
that the Career Board based its selection decisions regarding promotions
to the GS-15 positions at issue on age. In addition, the Commission finds
that the fact that C2-C3 were ultimately promoted to GS-15 positions after
they turned age 50 lends less credibility to their claim that the agency
uniformly discriminated against candidates for promotion over age 50.
Accordingly, the Commission finds that complainants failed to present
evidence that the agency's selection was motivated by age animus.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
August 21, 2000
__________________
Date
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 We note that two of the three complainants (C2-C3) were promoted to
GS-15 positions after filing their formal complaints in the instant case.