01983659
03-24-2000
Ronald L. Fowler, Complainant, v. Bruce Babbitt, Secretary, Department of Interior, Agency.
Ronald L. Fowler v. Department of Interior
01983659
March 24, 2000
Ronald L. Fowler, )
Complainant, )
) Appeal No. 01983659
v. ) Agency No. FWS97013R9
)
Bruce Babbitt, )
Secretary, )
Department of Interior, )
Agency. )
)
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of age (54), in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The appeal
is accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the Commission AFFIRMS the FAD as CLARIFIED herein.
The record reveals that during the relevant time, complainant was
employed as a GS-13 Program Analyst in the Division of Realty at the
agency's Fish and Wildlife Service, Arlington, VA. Complainant claims
that he was not selected for the following positions because of his age:
(1) Program Analyst, (September 1995); (2). Refuge Program Specialist,
(March 1996); and, (3). Refuge Program Specialist, (August 1996).
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint. At the conclusion of
the investigation, complainant requested that the agency issue its FAD.
Initially, the FAD found that complainant failed to make timely
EEO counselor contact regarding Position 1 and Position 2, noting
that it occurred long after the 45 day period set forth in 64
Fed. Reg. 37644,37656, (1999) (to be codified and hereinafter referred
to at 29 C.F.R. �1614.105(a)(1)). The FAD additionally determined that
complainant had not satisfied the conditions for excusing the untimely
contact under a continuing violation theory, and dismissed the claim as
to Position 1 and Position 2. Notwithstanding this determination, the FAD
also considered the entire claim on its merits, finding no discrimination.
In reviewing the agency's procedural determination, we find that
it properly dismissed that portion of the claim regarding Position 1
because it is not sufficiently related to the non-selection for Position
3 so as to justify waiving the untimely EEO counselor contact under a
continuing violation theory. Sanudo v. Social Security Administration,
EEOC Appeal No. 01985150 (August 31, 1999). In reaching this finding,
we note that these are different types of positions, and that each had a
different selecting official (SO). However, Position 2 and Position 3
concerned vacancies for the same position (Refuge Program Specialist),
and they each had the same SO. Consequently, we find that the FAD
improperly dismissed that portion of the claim regarding Position 2.
We CLARIFY the FAD accordingly.
Next, the FAD concluded that complainant established a prima facie
case of age discrimination regarding Position 3, but not Position
2, because he satisfied only "three elements"�apparently referencing
complainant's showing that he was over 40 years of age and qualified for
the position, but that a younger applicant (SE1) was instead selected.
In making this determination we assume that the FAD is suggesting that
complainant had the burden of establishing that age was a "determinative
factor" in order to establish a prima facie case. This is incorrect.
Instead, that question is addressed when the trier of fact makes a
decision on the ultimate issue of discrimination, and not at the prima
facie stage. Although the burden remains on complainant to demonstrate,
by a preponderance of the evidence, that age was a determinative factor
(in the sense that, "but for" his age he would not have been subjected
to the action at issue), it is not an element of the prima facie case
analysis. See Fodale v. Department of Health and Human Services, EEOC
Request No. 05960344 (October 16, 1998). Therefore, we find that the
complainant has established a prima facie case of age discrimination with
respect to Position 2 and Position 3, and we CLARIFY the FAD accordingly.
Regarding both positions, the FAD then determined that the agency
articulated legitimate nondiscriminatory reasons for its decision,
and that no evidence was offered by complainant to prove pretext.
In addressing Position 2, the FAD found that the vacancy was cancelled
due to budget concerns associated with a downsizing mandate, and then
filled non-competitively with a person of the same age group (48) as
complainant.<2> Concerning Position 3, the FAD determined that the
selectee (SE3) was significantly better qualified for the position and
that he was selected for this reason as well as because he had excellent
references, a good interview, more desirable work habits, and performed
his assigned duties better than complainant.
On appeal, complainant repeats his arguments, and also challenges the
credibility of the agency's witnesses and the authenticity of certain
affidavits, arguing that the agency's evidence should be discounted
accordingly. However, we note that complainant did not request a
hearing before an EEOC Administrative Judge in light of these concerns.
Furthermore, our review of the testimony on the record does not reflect
any significant inconsistencies such as to place its credibility into
question, and the failure of certain witnesses to sign their affidavits
appears to be inadvertent. The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973),and Loeb v. Textron, 600 F.2d
1003 (1st Cir. 1979), the Commission concurs with the FAD's finding
of no discrimination. Regarding Position 2, SO provides uncontested
testimony that he canceled the vacancy because of the danger of having
its funding cut off before it could be filled. Subsequently, he was able
to fill the position non-competitively with an employee who needed to
transfer from Hawaii, and whom he knew to have excellent qualifications.
Regarding Position 3, SO testified that complainant did not perform
well in the selection process, and that he was not impressed with the
quality of complainant's work, his work habits, or his work ethic, all
of which he was familiar with on a first hand basis. Witness testimony
corroborates SO's statements about complainant's poor work performance.
Furthermore, we find that SO's testimony suggests that he would not
have selected complainant for either of these positions based on his
first hand knowledge of his poor work performance, and the record is
devoid of any indication that age played a role in either non-selection.
Moreover, although complainant avers that he believes that he was not
selected for these positions because of his age, he provides no evidence
to substantiate this belief.<3>
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 as
CLARIFIED.
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 24, 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
1On 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.
2In his appeal, complainant disputes that the selectee (SE2) was 48,
stating that he was instead 38 years old. Our review of SE2's personnel
documentation reveals that his date of birth is 9/11/57, making him 39
years old at the time of selection. Therefore, he is not in complainant's
protected group, and we CLARIFY the FAD accordingly.
3We note complainant told the investigator that he once heard that the
reviewing official for all three positions had made a remark reflecting
age animus. However, he could not provide any verifying details about
the circumstances of this remark, and as such, we discount it accordingly.