01a35231
01-25-2005
William H. Clay, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
William H. Clay v. Department of the Treasury
01A35231
January 25, 2005
.
William H. Clay,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A35231
Agency No. 992406
Hearing No. 310-2000-05224X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Sec. 621 et seq. The
appeal is accepted pursuant to 29 C.F.R. Sec. 1614.405. For the following
reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
The record reveals that complainant, a Plate Printer at the agency's
Bureau of Engraving and Printing's Western Currency Facility in Fort
Worth, Texas, filed a formal EEO complaint on September 13, 1999,
alleging that the agency had discriminated against him on the bases of
age (D.O.B. 10/5/42) and retaliation for prior EEO activity when he was
not selected for one of three acting plate printing supervisor positions.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination. The AJ concluded that complainant established a prima
facie case of age discrimination because the selectees were substantially
younger than complainant. The AJ concluded that complainant had failed
to establish a prima facie case of retaliation.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, citing the testimony of an
agency witness to the effect that complainant was not as qualified as any
of the selectees. The AJ found that complainant did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination/retaliation. The agency's final order
implemented the AJ's decision. From that order complainant brings the
instant appeal.
LEGAL STANDARD
Pursuant to 29 C.F.R. Sec. 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as �such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.� Universal Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
ANALYSIS AND FINDINGS
Recusal
Complainant contends that the AJ should have recused himself from this
matter because at a hearing in another administrative EEO case involving
the agency, the AJ engaged in conduct which, according to complainant,
casts doubt on the AJ's impartiality. The incident in question involved
a complaint filed by a co-worker (CW1) of complainant at the Western
Currency Facility. In December 2000, that case was assigned for a
hearing to the same AJ who presided in the instant matter. According to
the husband of CW1, who was present at his wife's hearing at the Bureau
of Engraving and Printing, during a break in the proceedings, the AJ
approached agency counsel and asked him "Do you think you can get my son
a job here?" According to the husband of CW1, agency counsel's response
was inaudible.
In December 2001, complainant was notified of the identity of the AJ who
would be presiding in his case. In January 2002, complainant, having
learned from CW1's husband about the job inquiry allegedly made by the AJ
at the December 2000 hearing, contacted the Director of the EEOC's Office
of Federal Operations and reported to him what the AJ had allegedly done.
Shortly thereafter, complainant submitted to the AJ a "Motion to Recuse
Administrative Judge." That motion was supported by two affidavits,
the first from CW1's husband and the second from complainant himself.
Complainant averred:
[The AJ]'s conduct during the hearing in [CW1's] case makes me question
[the AJ's] impartiality in my case against the same agency from which
[the AJ] sought employment for his son. . . . [The AJ's] conduct during
[CW1's] hearing has caused me to lack confidence in the integrity of the
hearing process in which my claims of discrimination will be ruled upon.
I am also concerned that my raising with the director of the Office of
Federal Operations of the EEOC [the AJ]'s conduct in [CW1's] case will
prejudice [the AJ] against me, and I do not believe [the AJ] will be
an impartial or neutral administrative judge for my case because of my
statements [to the director.]
Along with its opposition to the motion, the agency submitted an
affidavit from the agency's representative at CW1's hearing. He denied
complainant's allegations, stating the AJ "has never made an inquiry to
me regarding the possibility of my getting his son a job at the Bureau
[of Engraving and Printing]."
The record also contains an affidavit from the AJ himself addressing
the question of his conduct at CW1's hearing. The AJ averred: "I
did not, during [CW1's] hearing or at any other time, ever ask [the
agency representative] or any one else at the Bureau of Engraving and
Printing whether they 'can get my son a job here' or any other question
of similar import."
The AJ denied the recusal motion on the grounds first, that the alleged
job solicitation did not occur and second, that complainant's charge of
bias is "mere speculation" that is "without basis." For these reasons,
the AJ declined to exercise his "discretion" to recuse himself.
We agree that the question of recusal is a matter entrusted to the
discretion of the AJ. Moran v. Clarke, 296 F.3d 638 (8th Cir. 2002).
We conclude that the AJ did not abuse his discretion in denying the
motion. Our review of the record reveals that, as an evidentiary matter,
there is insufficient proof that the job solicitation occurred. There is
nothing more to support complainant's motion than a single unelaborated
assertion by CW1's husband that the question was asked. That claim is
directly contradicted by the AJ and by the agency representative to whom
the question was allegedly directed. In addition, our review of the
transcript of the hearing, reflecting the testimony of 18 witnesses,
reveals no hint of bias or prejudice on the part of the AJ, either in
the course of colloquies with the parties or in ruling on objections.
Finally, complainant claims that his communication with the director
of EEOC's Office of Federal Operations<1> regarding the AJ's allegedly
inappropriate behavior might have prejudiced the AJ against him. The fact
of this communication proves nothing about the AJ's possible prejudice
against complainant. Although it may be evidence of complainant's dislike
of the AJ, we will not presume it engendered in the AJ a disqualifying
animus against complainant. See, e.g. King v. United States, 576 F.2d
432, 437 (2d Cir. 1978)(critical letter sent by litigant to judge
establishes the litigant's "feelings toward [the judge], but has no
tendency to show the latter's feelings toward [the litigant.]")
Non-Selection
In the absence of direct evidence, a claim of discrimination is
examined under the three-part analysis originally enunciated in
McDonnell Douglas Corporation v. Green. 411 U.S. 792 (1973) see,
Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425
F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying
McDonnell Douglas to retaliation cases) and Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 141 (2000) (applying McDonnell Douglas to
age discrimination cases). For complainant to prevail, he must first
establish a prima facie case of discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. Id. at 802; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its action. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
Prima Facie Case - Age Discrimination
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. Sec. 623(a)(1). When a complainant alleges that he or she has
been disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision." Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen
Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is, [complainant's]
age must have actually played a role in the employer's decision making
process and had a determinative influence on the outcome." Id.
Here, with respect to age discrimination the AJ found that �the
Complainant has established a prima facie case of discrimination of
the basis of his age in that all three selectees were substantially
younger that he was and that without more it is possible to conclude
that Complainant's nonselection was based on an age bias.� On appeal
neither party challenges the correctness of that conclusion. We find
that complainant established a prima facie case of age discrimination.
Prima Facie Case - Retaliation
Complainant can establish a prima facie case of retaliation discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in
a retaliation claim, according to the burdens set forth in McDonnell
Douglas, 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
retaliation by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of her protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 26, 2000).
The nexus may be shown by evidence that the adverse treatment followed
the protected activity within such a period of time and in such a manner
that a retaliation motive is inferred. See Devereux v. United States
Postal Service, EEOC Request No. 05960869 (April 24, 1997).
The Commission's policy on retaliation prohibits any adverse treatment
that is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in a protected activity.
See EEOC Compliance Manual Section 8, "Retaliation" No.915.003 at pp. 8-13
(May 20, 1998).
In the instant case, with respect to retaliation, the AJ stated �I do
not find that Complainant established a prima facie case based upon
retaliation for engaging in prior protected EEO activity.� The AJ
gave no explanation for this conclusion. On appeal complainant asserts
that the AJ erred in failing to credit complainant's evidence adduced
at hearing that he had engaged in protected activity, to the knowledge
and displeasure of supervisors who were later indirectly involved in the
selection decisions here at issue. Specifically, complainant alleged
that a supervisor (S1) requested complainant, a union official, to
dissuade a union member from filing an EEO complaint against the agency.
Complainant refused. On another occasion, complainant allegedly assisted
an employee in filing an EEO complainant against another supervisor
(S2). According to complainant, both S1 and S2 were involved in rating
applicants for the selection at issue and both gave him ratings lower
than he deserved in retaliation for his protected activity. Complainant
contends that this evidence was sufficient to establish a prima facie
case of retaliatory nonselection. <2>
We agree with complainant that it was incumbent upon the AJ to address
complainant's contentions and resolve the factual disputes related to
his prima facie case of retaliation. However, we are persuaded that,
notwithstanding the AJ's ruling on the prima facie case, complainant
failed to prove discrimination for the reasons discussed below.
Failure to Prove Pretext
There is no dispute that the agency articulated a legitimate,
nondiscriminatory reason for its action, i.e. that the selectees were
better qualified than complainant. The crux of this matter is the
AJ's determination that complainant failed to show that that reason was
a pretext for discrimination. In a non-selection case, pretext may be
demonstrated by a showing that complainant's qualifications are observably
superior to those of the selectee. Bauer v. Bailor, 647 F.2d 1037, 1048
(10th Cir. 1981); Williams v. Department of Education, EEOC Request
No. 05970561 (August 6, 1998). Here, complainant attempted to make such
a showing but the AJ found that the attempt failed. We conclude that
there is substantial evidence in the record supporting the AJ's finding.
At the hearing there was extended testimony concerning the relative
qualifications of the complainant and the three selectees. The selecting
official testified that he personally interviewed complainant and the
selectees. He also interviewed several supervisors who were familiar
with the applicants' qualifications and based his selection decision,
in part, on their evaluations of the applicants' qualifications.
According to one of those supervisors (S1) complainant's performance was
"average." Another's (S3) evaluation of complainant was "neutral or a
little negative." The AJ found the selecting official to be credible
and unimpeached on cross-examination. In contrast, the AJ found the
complainant's testimony to have been unworthy of belief because it was
based on "rumors" and "suppositions."
The record also contains documentary evidence supporting the AJ's
finding that complainant's qualifications were not observably superior
to those of the three selectees. These include documents created in
the course of the selection process evaluating the comparative qualities
of the applicants. Our analysis of these documents shows that even if
the evaluations of the allegedly biased supervisors, S1 and S2, are not
considered , complainant would not have been selected. In the face of
this evidence, complainant could not demonstrate that his qualifications
were observably superior to those of the successful applicants.
The Commission finds that the AJ's findings of fact are supported by
substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws<3>.
CONCLUSION
For the foregoing reasons, we discern no basis to disturb the AJ's
decision. 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
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
29 C.F.R. Sec. 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 29 C.F.R. Sec. 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. Sec. 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
January 25, 2005
__________________
Date
1The director of the Office of Federal Operations took no part in this
decision.
2The agency argues that because the selecting official was shown at
hearing not to have had knowledge of complainant's protected activity,
complainant could not establish a prima facie case of retaliation.
The agency's position is not well taken. The focus of complainant's
contentions in not on the selecting official but rather on two supervisors
who were involved in the preliminary stages of the selection process.
Proof of retaliatory motives on their part would support a prima facie
case. See e.g. Stoller v. Marsh, 682 F.2d 971, 972 (D.C. Cir. 1982).
3Complainant also cites as evidence of age discrimination, statements
made by managers indicating a bias against promoting older workers.
One particular supervisor (S4) was quoted as having said she wanted
younger persons in supervisory positions. Complainant's evidence on this
point was rebutted by the agency. S4 specifically denied having made the
statement attributed to her. The management official in overall charge
of promotions denied there was any policy against promoting older workers
to supervisory positions. In addition, there was no evidence that the
official responsible for complainant's non-selection made age-biased
statements. Finally, the evidence showed that during the relevant
period at least two persons in their late 50s or 60s were promoted to
supervisory positions. The AJ, although making no specific finding on
this point, apparently credited the agency's witnesses over complainant's.