Vincent Velotta, et al., Complainants,v.Janet Reno, Attorney General, Department of Justice, (Drug Enforcement Agency), Agency.

Equal Employment Opportunity CommissionAug 21, 2000
01981921 (E.E.O.C. Aug. 21, 2000)

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.