0120060274
10-30-2007
Wilbur G. Corbitt, Complainant, v. Peter D. Keisler, Acting Attorney General, Department of Justice, Agency.
Wilbur G. Corbitt,
Complainant,
v.
Peter D. Keisler,
Acting Attorney General,
Department of Justice,
Agency.
Appeal No. 01200602741
Agency No. D-03-3740
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision regarding his complaint of unlawful employment discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
BACKGROUND
During the period at issue, complainant was employed as a Diversion
Program Manager (DPM), GS-14, at the agency's Miami Field Division
(MFD), Drug Enforcement Administration, in Miami, Florida. In July
2002, a new Miami Special-Agent-in-Charge (SAC) became his supervisor.
Believing that he was subjected to discrimination based on age, and
in reprisal for prior EEO activity, complainant sought EEO counseling.
Informal efforts to resolve complainant's concerns were unsuccessful.
On August 25, 2003, complainant filed the instant formal complaint
claiming he was discriminated against when:
(1) he was not selected for promotion to a GS-1801-15 Diversion
Program Manager position, under Vacancy Announcements OC-03-086,
OC-03-093, and OC-03-094 ;
(2) his supervisory responsibilities as the Miami DPM were removed;
(3) he received negative DEA 369 Supervisory Appraisals;
(4) agency officials inquired about his retirement plans; and
(5) agency officials retaliated against him for participating in a
legal proceeding.2
At the conclusion of the investigation, complainant was informed of
the right to request a hearing before an EEO Administrative Judge or,
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its September 7, 2005, final decision, the agency found that
complainant did not establish that he was subjected to discrimination
based on age or reprisal. Regarding claim (1), the agency found that
complainant established a prima facie case of age discrimination.3
However, the agency determined that legitimate, non-discriminatory
reasons were presented for the selection decisions at issue. The agency
determined that although complainant made the Best Qualified List, he was
not recommended to the Career Board by any SAC. One SAC testified that
complainant lacked leadership and initiative in his management of the
MFD Diversion Program. Moreover, Board members found that the selectees
had greater variety and depth of experience, and were highly recommended.
In attempting to prove pretext, complainant argued that the promotional
opportunity should not have been competed because other individuals have
been promoted without competition when positions were upgraded due to an
accretion of duties. The agency concluded that it did not deviate from
its established practice in advertising and filling the positions in
question through the merit promotion process. According to an agency
official, while sometimes positions are upgraded, it does not happen
all the time, and the selection process allowed all eligible employees
to apply.
Regarding claim (2), in the final decision, concerning the removal of
complainant's supervisory responsibilities by the Miami SAC, the agency
noted that "the record is not clear whether complainant's supervisory
responsibilities were removed." The agency found, however, that even
assuming that complainant's responsibilities for the Tampa, Orlando,
and Tallahassee groups were removed, complainant was made the "rater"
of all Group Supervisors and Diversion Investigators, and maintained
authority over the Miami group. The agency therefore determined that
even if some supervisory responsibilities had been removed, complainant's
status as a "rater" denoted that his overall responsibilities were not
significantly less.
In claim (3), complainant alleged that he received negative DEA 369
appraisals from his supervisor as part of the selection process in claim
(1). Specifically, complainant stated that the Miami SAC provided him
with the worst appraisal he had received in twenty-eight years. In its
decision, the agency determined that "the record did not contain [a
copy of] complainant's DEA 369 appraisal with [SAC Miami's] comments."
However, the agency cited to the statement of the Miami SAC, which the
agency found to contain a legitimate justification for his criticism
in complainant--that complainant's program had the largest staff, but
mediocre performance.
Complainant also asserted, in claim (4), that agency officials inquired
about his retirement plans. In its decision, the agency acknowledged
that, in certain circumstances, retirement questions may be probative of
age discrimination. In the instant case, however, the agency determined
that the Miami SAC inquired about complainant's plans in July 2002,
approximately one year before the selection process. Additionally,
the agency noted that the Miami SAC was himself 54 years old, and there
was no evidence indicating he was predisposed to age discrimination.
Therefore, the agency concluded that complainant did not suffer an
adverse action with respect to the retirement questions.
Regarding claim (5), the agency concluded that, while complainant
testified in the Diversion Investigators 6c lawsuit before an
MSPB Administrative Judge, he did not engage in prior EEO activity.
The agency noted that the case addressed retirement laws and there was
no evidence that the matter in the lawsuit concerned unlawful employment
discrimination. Consequently, the agency found that complainant could not
allege reprisal under the EEO laws. The agency determined, moreover,
that even if the activity did concern EEO matters, there was no causal
connection between the 1990 lawsuit and the 2003 adverse actions.
The agency's September 7, 2005 decision also addressed a claim that
was neither identified in the formal complaint nor investigated as a
claim: complainant's reassignment to DEA Headquarters.4 Initially, the
agency noted that "the record does not contain any evidence concerning
management's stated reasons for reassigning complainant . . . ."
Nonetheless, the agency stated that "evidence indicated" complainant's
DPM GS-14 position was upgraded to DPM GS-15, and that the GS-14 position
no longer existed. Complainant was asked to select his top three choices
from a list of offices containing GS-14 vacancies. The agency concluded
from the record that complainant did not make a selection. Thereafter,
the Career Board reassigned him to DEA Headquarters.5
On appeal, complainant contends that the agency's decision and
Report of Investigation are based on "inadequate investigations."
Complainant disputes several details presented in the agency's September
7, 2005 decision. For example, with respect to claim (1), complainant
reiterates his belief that he was not selected due to his age, because
only the youngest DPMs were selected and "only the two oldest DPMs were
denied promotion to Grade 15." Further complainant contends that seven
of the Career Board members stated that they did not see complainant's
DEA 369 application. According to complainant, this action supports
his belief that a selection had already been made.
Regarding claim (2), complainant argues that his three Group Supervisors
and the Assistant Special-Agents-in-Charge that were present at the
meeting where it was announced that he no longer had supervisory
duties should have been interviewed. Complainant notes that the
only Group Supervisor who was questioned confirmed his assertions
that his supervisory duties were removed at an August 5, 2002 meeting.
Moreover, in response to the agency's conclusion that complainant failed
to establish that his staff coordinator responsibilities were less
significant, he argues that he had supervised twenty-nine individuals
before, and did not supervise anyone as part of his reduced duties.
Also, he notes that the DPM position was being up-graded to a GS-15,
while the Staff Coordinator position was a GS-14 post that was supervised
by another GS-14.
Regarding claim (3), complainant questions why the record did not contain
his DEA 369 with the Miami SAC's comments. Complainant asserts that
the documents sent in response to his FOIA request contained completed
DEA 369s for the other applicants, while his included two blank pages
for the portions that were to be filled out by his supervisor. Further,
complainant challenges the Miami SAC's purported legitimate reason for
the negative appraisal, stating that from October 1997 through August
2003 his Miami program was ranked third out of eighteen Field Divisions.
According to complainant the last DEA Headquarters Inspector to review
his program told him that it was the best run Diversion Program he had
inspected. Complainant questions why this individual's interrogatory
is not cited in the agency's decision.
In response, the agency argues that complainant has failed to establish on
appeal that the final decision is not supported by substantial evidence.
Regarding the job vacancy in Miami, the agency states that the Miami
SAC's testimony provided sufficient non-discriminatory reasons for his
recommendations to the Career Board. Further, the agency maintains that
there is no evidence indicating that the agency's actions were motivated
by complainant's age or in retaliation for his participation in a legal
proceeding. Finally, the agency contends that complainant improperly
proffers additional testimony and evidence on appeal without establishing
that such evidence was not available during the investigation.
ANALYSIS AND FINDINGS
Claim (1)
Complainant applied to the position he occupied, Diversion Program
Manager (DPM) of Miami, which had been upgraded to GS-15. Additionally,
complainant applied to the DPM positions located in Atlanta and New
Orleans. Complainant, while rated as qualified, was not selected for
any of the positions, and believes this was due to his age (69 years
old). The selectees were younger (ages 56, 51 and 56). Therefore, we
find that complainant properly established a prima facie inference of
age discrimination.
However, this initial inference of age discrimination was rebutted by
the agency's articulation of legitimate non-discriminatory reasons for
complainant's non-selection. Although complainant was on the Best
Qualified List and presented to the Career Board for consideration,
the Board found that the selectees were better candidates for the
three vacancies. Moreover, with respect to the Miami position, his
supervisor, the Miami SAC, did not recommend him for the position.
The Miami SAC stated he believed that complainant lacked leadership in
his management of the program and failed to improve the program when
given the opportunity to do so. The Miami SAC indicated to the Career
Board that new leadership was needed. By contrast, the selectee for
the Miami vacancy was highly recommended by the Miami SAC. The Deputy
Assistant Administrator also expressed in her interrogatory that the
selectee was "one of the most talented writers and investigators I have
had the pleasure to supervise. She follows directions and ensures her
staff is ready for anything." Additionally, one Board Member had worked
with the selectee and found her to be "extremely competent."
Similarly, the selectees for the Atlanta and New Orleans positions
were the top recommendations by the SACs for those offices. The record
indicates that the Board Members considered the qualifications of the
selectees and the recommendations of the SACs for Miami, Atlanta and
New Orleans in making their choices for the vacancies.
The Commission also finds that the complainant failed to present evidence
that, more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. Complainant attempted to
show pretext by arguing that the agency did not follow established
practice when it advertised the GS-15 DPM positions, instead of simply
promoting without competition by an upgrade due to an accretion of duties.
Complainant argued that a competitive selection process was used to move
the two oldest DPMs out of their positions. The record, however, does
not adequately support complainant's assertions, and management witnesses
provided legitimate reasons for using a competitive selection process.
In addition, complainant contends that his name was never presented to
the Career Board, and that the Board merely approved previously agreed
upon decisions. The interrogatories for the Board members, however,
reflect that complainant was presented as a candidate, on the Best
Qualified List, and considered. Finally, complainant argues that the
Miami SAC ordered a review of his program just before selections were
made, with the knowledge that the Board would not select anyone whose
program was under investigation. Once again, the Commission finds that
beyond his bare assertions complainant's contentions are not supported
by evidence of record.
Accordingly, the agency's decision finding no discrimination in claim
(1) was proper.
Claim (2)
Complainant claims that he was discriminated against when, in August 2002,
his supervisory responsibilities over the diversion groups in Tampa,
Orlando and Tallahassee was allegedly removed by the Miami SAC, and the
Assistant SACs were placed as the supervisors of those respective groups.
Instead, he was made the "rater" of all Group Supervisors and Diversion
Investigators. According to complainant, this action meant that he was
responsible for the individuals, but lacked authority over them.
While the Miami SAC denied removing complainant's supervisory
responsibilities over Tampa, Orlando and Tallahassee, an Orlando Diversion
Group Supervisor stated that he was at an August 2002 meeting where
the Miami SAC removed complainant as supervisor of Tampa, Orlando and
Tallahassee. According to the Division Group Supervisor, the Miami SAC
said he was taking the action to "turn the Diversion Program around," and
that he [the Miami SAC] "did not understand why Diversion was not doing
criminal cases." The Diversion Group Supervisor added that the Miami
SAC originally proposed having the Assistant SACs serve as raters too,
but relented when they voiced their objections. Therefore, complainant
became the "rater" of the Group Supervisors and Diversion Investigators
in Tampa, Orlando and Tallahassee. Complainant did not suffer a loss of
pay, grade or title as a result of this action, and apparently retained
his direct supervisory authority over the group in the Miami office.
The agency's final decision acknowledges that "the record is not clear
whether complainant's supervisory responsibilities were removed."
The Report of Investigation shows that when questioned on the
matter, the Miami SAC provided only a general denial to the claim.
By contrast, the Diversion Group Supervisor from the Orlando District
Office attests that he attended an August 5, 2002 meeting and confirms
that the Miami SAC removed complainant as the supervisor of Orlando,
Tampa and Tallahassee. However, even assuming complainant's supervisory
duties were significantly diminished by the actions of the Miami SAC at
the August 2002 meeting, the record provides an articulated legitimate,
non-discriminatory reason for the action. As already noted, the Orlando
Group Supervisor stated that the Miami SAC said at the meeting he was
doing it because he wanted to turn the diversion program around and
was dissatisfied to the fact the diversion investigators were not doing
criminal investigations. Complainant confirms that, at the August 2002
meeting, the Miami SAC revoked "my prior direction that no criminal
investigations were to be done." Complainant has not provided evidence
to prove that it was age or reprisal discrimination that motivated the
removal of his supervisory responsibilities rather than the Miami SAC's
dissatisfaction with how the diversion programs in those offices were
being run. Consequently, the Commission finds that complainant has not
established his claim of discrimination with respect to claim (2).
Claim (3)
In claim (3), complainant asserted that he received negative DEA
369 Supervisory Appraisals, which were part of his applications for
the three DPM positions. In its decision, the agency admits that the
appraisal, with the Miami SAC's comments, is absent from the record, and
the Commission is troubled by this omission. However, the Miami SAC's
statement reflects that he believed his appraisal reflected complainant's
mediocre performance. Specifically, he asserted that during the 2002/2003
year, the Miami Office only made seven arrests despite having a large
staff, the lowest number for the four Florida offices in the Diversion
Program. Moreover, an attachment to the Miami SAC's statement provided
the statistics he noted. The complainant has failed to establish that
the reasons provided by the Miami SAC for the critical DEA 369 appraisal
were a pretext to mask age or reprisal discrimination.
Claim (4)
Complainant alleges that he was discriminated against when agency
officials inquired about his retirement plans. In particular, complainant
claims that during his first meeting with the Miami SAC, in July 2002,
the Miami SAC asked about retirement. The Commission agrees with
the agency, that complainant has failed to establish a nexus between
this inquiry and any subsequent actions, such as the non-selections or
negative appraisals. Based on the instant record, we do not find that
complainant has shown that he was discriminated against when the RMO
inquired about complainant's retirement plans.
Claim (5) / Basis of Reprisal
We note that the matter identified as "claim (5)" should not be addressed
as a separate claim, but rather as a basis for complainant's entire
complaint.6 According to complainant, agency officials retaliated
against him for participating in a "6c lawsuit." Complainant explained
to the EEO Investigator that he is one of approximately 230 Diversion
Investigators who filed suit, in approximately 1989, alleging that
"the basic retirement law covering DEA Investigators applied equally
to Diversion Investigators as well." Complainant was asked to testify
before a Merit Systems Protection Board Administrative Judge on the
matter. There is no indication that the lawsuit raised matters of
discrimination. Therefore, we do not find that complainant has engaged in
"protected activity". Moreover, the legal proceeding occurred in 1990,
more than ten years after the allegedly discriminatory actions.
CONCLUSION
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, the Commission AFFIRMS the
agency's decision, which concluded that the evidence of record does not
support a finding of age and/or reprisal discrimination.
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. � 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. � 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 (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. � 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
October 30, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The Commission has numbered these claims for ease of reference.
3 The agency noted that although the selectees were all over the age
of 50, complainant was 69 years old.
4 The Report of Investigation Summary makes reference to the reassignment
as "background information."
5 The agency noted that complainant chose to retire rather than transfer
to DEA Headquarters. The agency determined that because complainant has
not alleged he was compelled to transfer, he did not raise a constructive
discharge claim. Complainant does not dispute this categorization.
6 This observation is also made by the EEO investigator and noted in
complainant's affidavit.
??
??
??
??
2
01A61788
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
9
0120060274