William H. Shelby, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 16, 2000
01a00321 (E.E.O.C. Mar. 16, 2000)

01a00321

03-16-2000

William H. Shelby, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


William H. Shelby, )

Complainant, )

) Appeal No. 01A00321

v. ) Agency No. 980536

)

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (�FAD�)

concerning his complaint of unlawful employment discrimination on the

bases of reprisal (prior EEO activity) and age (over-forty) in violation

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

2000e et seq. and the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. � 621 et seq.<1>

ISSUE PRESENTED

The issue presented herein is whether complainant has demonstrated by a

preponderance of the evidence that the agency discriminated against him

on the bases of his age (over-forty) and reprisal (prior EEO activity)

when he was not selected for a position within the agency.

BACKGROUND

The record reveals, that for the relevant period, complainant was

employed by the United States Department of Agriculture as a Supervisor

Agricultural Commodity Grader, GS-11. Complainant states that on or about

August 18, 1997, the agency posted a job announcement (6-34-402-7) for

an Agricultural Commodity Grader (FGIS Manager), for which he applied.

Subsequent to submitting his application for the above position,

complainant underwent a telephone interview. Thereafter, complainant

was notified on December 18, 1997 that he was not selected for the

position.

Believing that he was the victim of unlawful employment discrimination,

on December 24, 1997, complainant initiated contact with an EEO Counselor.

During the counseling period, complainant stated that he was discriminated

against when he was not selected for the aforementioned position.

Counseling failed, and on March 30, 1998, complainant filed a formal

complaint claiming that he was the victim of unlawful employment

discrimination on the bases of his age (over-forty) and reprisal

(prior EEO activity). The complaint was comprised of the matter for

which complainant underwent EEO counseling, discussed above.

The agency accepted the complaint and subsequently ordered an

investigation. The record reveals that complainant and several others

applied for the above position. Therefore, at the behest of the selecting

official, a panel was created to review and recommend the best qualified

applicant for the position. According to the record, the selectee and

the complainant were similarly graded with respect to qualifications

and experience, except that the selectee excelled beyond complainant

during the telephone interview. It is corroborated by the members of

the panel that complainant was more qualified with respect to education

and experience, but the telephone interview revealed that complainant

did not speak and respond to verbal questions as well as the selectee.

Therefore, since the position in question required a lot of in person

interaction with other federal and state officials, the panel recommended

the selectee, who displayed superior speaking skills during the telephone

interview.

On September 7, 1999, the agency issued a FAD finding that the agency

did not discriminate against complainant on the bases of his age or

prior EEO activity when they did not select him for the Agricultural

Commodity Grader (FGIS Manager) position. Specifically, the agency

found that complainant did not establish a prima facie case of age or

reprisal discrimination, but even if he had, he did not demonstrate

by a preponderance of the evidence that the agency's legitimate

nondiscriminatory reason was pretextual.

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 or ADEA case

alleging discrimination is a three-step process. McDonnell Douglas

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

Complainant can establish a prima facie case of 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 reprisal, 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

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.

However, although the initial inquiry in a discrimination case usually

focuses on whether the complainant has established a prima facie case,

following this order of analysis is unnecessary when the agency has

articulated a legitimate nondiscriminatory reason for its actions.

Washington v. Department of the Navy, EEOC Petition No. 0300056 (May 31,

1990). In such cases, the inquiry shifts from whether the complainant

has established a prima facie case to whether he or she has demonstrated,

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

actions, were merely a pretext for discrimination. Id.; See Also United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-17

(1983). Therefore, in the present case, the Commission will bypass the

prima facie stage of the analysis and focus on whether the complainant

has demonstrated, by a preponderance of the evidence, that the agency's

explanation for its action, was a pretext for discrimination based

on reprisal.

In the present case, the complainant has argued throughout the

investigative stage of his complaint that he was more qualified than

the selectee. However, these are bare assertions supported by no

direct evidence. Rather, the record clearly reveals that both the

selectee and the complainant were

similarly qualified. In fact, the selectee served for a year as an acting

manager in the same position in which he was selected for. Therefore,

contrary to complainant's bare assertions, the

evidence does not clearly establish that his qualifications were plainly

superior to those of the selectees, thereby supporting a finding

of pretext. See Vanek v. Department of the Treasury, EEOC request

No. 05940906 (January 16, 1997) (citing Bauer v. Bailor, 647 F.d 1073,

1048 (10th Cir. 1987)). Accordingly, the complainant has failed to

prove, by a preponderance of the evidence, that the agency retaliated

against him for his prior EEO activity when they did not select him for

the above cited position.

B. ADEA Claim

In a ADEA case, complainant can establish a prima facie case of

discrimination by showing that: (1) he is at least forty years old; (2) he

was qualified for the position; (3) he was not selected for the position;

and (4) he was accorded treatment different from that given to a person

otherwise similarly situated who is not a member of his protected groups

or is considerably younger that he. See O'Connor v. Consolidated Coin

CAterers Corp., 517 U.S. 308 (1996); Terrell v. Department of Housing

and Urban Development, EEOC Appeal No. 01961030 (October 25, 1996). The

ultimate burden remains on complainant to demonstrate, by a preponderance

of the evidence, that age was a determinative factor. Loeb v. Textron,

600 F.2d 1003 (1st Cir. 1979); and Fodale v. Department of Health and

Human Service, EEOC Request No. 05960344 (October 16, 1998).

Based on these principles of law, we conclude that complainant established

a prima facie case of age discrimination because he was over forty years

of age, was qualified for the position, and was not selected for the

position in favor of a younger employee. However, we note that complainant

fails to prove that the agency's legitimate, nondiscriminatory reasons

for its selection were a pretext for discrimination Although complainant

is within the ADEA's protected group, complainant presented no credible

evidence that age was a determinative factor in the selection of the

Selectee, since the Selectee as well as all of the other applicants

that were interviewed were also over the age of 40. While complainant's

education and experience is somewhat superior to that of the Selectee, the

record clearly indicates that the agency did not select complainant for

the position because he failed to perform as well as the Selectee during

the telephone interview, which the agency considered to be essential for

the position. Therefore, the Commission finds that complainant has not

shown, by a preponderance of the evidence, that the agency's articulated

nondiscriminatory reason was pretextual.

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:

March 16, 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 Assistant1On 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.