William L. Klein, Complainant, v. Michael O. Johanns, Secretary, Department of Agriculture, Agency. Appeal No. 01200617211 Agency No. 040520 DECISION On January 16, 2006, complainant filed an appeal from the agency's December 13, 2005, final decision (FAD) concerning his equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission reverses the agency's final decision. During the period at issue, complainant worked as a Risk Management Specialist, GS-13, at the agency's Risk Management Agency in Kansas City, Missouri. On June 23, 2004, complainant filed a formal complaint. Therein, complainant claimed that he was discriminated against on the basis of age (63) and in reprisal for prior protected activity when, on or about January 26, 2004, he was not selected for a promotion to a GS-14 Supervisory Risk Management Specialist position located in the Underwriting Standards Branch, Product Development Division, announced under Vacancy Announcement No. RMA-KC-15-2003. The record reflects that complainant applied for the subject position, and he and the selectee (age under 40) were among the ten candidates who were placed on the Register of Best Qualified by the Human Resources Office. A panel interviewed those candidates whose names appeared on the Register; and based on their interview and qualifications, five candidates, including complainant, were ranked as highly qualified by the panel. Thereafter, the panel discussed the strengths and weaknesses of the candidates with the Selecting Official (SO). The selectee was chosen for the position and complainant was informed of his non-selection on January 26, 2004. At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b), concluding that complainant failed to prove that he was subjected to discrimination as alleged. Specifically, the agency found that complainant established a prima facie case of age discrimination. The agency determined that he was over forty years old and was qualified for the position because he was placed on the lists that were forwarded for consideration, but that a candidate under forty years of age was selected for the position. The agency, however, found that complainant failed to establish a prima facie case of retaliation because he failed to establish that a nexus existed between his previous EEO activity and the nonselection at issue in this case. The agency further determined that the agency articulated legitimate, nondiscriminatory reasons for not selecting complainant. Finally, the agency determined that complainant failed to establish that the proffered reasons were a pretext for discrimination or retaliation. On appeal, complainant argues that the agency's proffered reasons are not sufficiently detailed to constitute a legitimate, nondiscriminatory reason for its actions. Complainant also argues that his qualifications were plainly superior to those of the selectee. As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a); EEOC Management Directive 110, Chapter 9, § VI.A. (November 9, 1999). In order to prove a claim of discrimination or retaliation and in the absence of direct evidence of discrimination, the allocations of burdens and order of presentation of proof in an ADEA case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying the McDonnell Douglas analytical framework to an ADEA disparate treatment claim). First, complainant must 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. Next, the agency must articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, then complainant must prove, by a preponderance of the evidence, that the legitimate reason proffered by the agency was pretext for discrimination. Id. at 256. To establish a prima facie case in a discriminatory nonselection claim, complainant must show that: (1) he is a member of a protected group; (2) he applied and was qualified for the position; (3) he was considered for and denied the position; and (4) another person, not a member of his protected group, was selected for the position. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03. Generally, complainant may also set forth evidence of acts from which, if otherwise unexplained, an inference of discrimination can be drawn. Furnco Construction Corp. v. Waters, 438 U.S. 557, 576 (1978). We find that complainant established a prima facie case of age discrimination because he demonstrated that he was over forty years of age, he was not hired for the position in question, and a significantly younger individual was selected for the position. Further, we note that the agency found in its FAD that complainant was qualified for the position because the Human Resources Office placed him on the best qualified list and forwarded his name for consideration. FAD at 5. Regarding the basis of reprisal, complainant can establish a prima facie case of retaliation by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (December 6, 1996). In accordance with the burdens set forth in McDonnell Douglas, supra, to establish a prima facie case of reprisal, a complainant must show that: (1) he engaged in a prior protected activity; (2) the official acting on behalf of the agency was aware of the protected activity; (3) he was subjected to adverse treatment by the agency; and (4) a nexus, or causal connection, exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). In the present case, we find that complainant established that he engaged in prior EEO activity; the SO acknowledged in his affidavit that he knew of complainant's past EEO activity; and complainant was subjected to adverse treatment by the agency when he was not selected for the position at issue in this case. However, we find that complainant has not established that a nexus, or causal connection, exists between the protected activity and the adverse treatment. In support of his retaliation claim, complainant stated in his affidavit that he believed he was being retaliated against because the SO was also the selecting official in the positions that complainant applied for in 1997 and 2000, and because complainant was involved in a class action prior to 1997. Complainant further stated that his 2000 EEO appeal was still pending when the position at issue in this case was announced. Despite these contentions, we find that the time period between his prior EEO activity, which took place in 1997 and 2000, and the subject action, which took place in 2004, was too remote in time to establish a causal connection between his prior EEO activity and his non-selection. See Clark County School District v. Breeden, 532 U.S. 268 (2001) (the time period between the prior activity and the adverse employment action must be "very close"). Moreover, without more, a nexus cannot be established between complainant's pending 2000 EEO appeal and the subject nonselection. Thus, we find that complainant failed to establish a prima facie case of retaliation. Because complainant established a prima facie case of age discrimination, the burden returns to the agency to articulate a legitimate, nondiscriminatory reason for its action. According to the SO, the selectee was chosen because "[she] simply was the best candidate for the position, [she] possessed past supervisory experience, the demeanor, professionalism, interpersonal communication skills, organizational skills, and leadership skills to effectively communicate and successfully accomplish the functions of the position." Selecting Official (SO) Affidavit at 4. Further, we note that the record contains a statement from a member of the interview panel (IP1), indicating that "[b]ased on my observations during the interview, [the selectee] provided very specific and relevant accomplishments in multiple related positions for every question we had. She demonstrated to the interview panel that she would be very capable in this job. She was very impressive." Interview Panel Member Affidavit at 4. The IP1 also stated that the selectee was "diligent, ambitious, and very well prepared for the interview. She was able to articulate her recent accomplishments which proved to me she would also be successful in this position." Notwithstanding the SO's and IP1's statements, we find that, given the specific facts in this case, the agency has failed to set forth, with sufficient clarity, reasons for complainant's nonselection such that he has been given a full and fair opportunity to demonstrate that those reasons are pretext. See Parker v. United States Postal Service, EEOC Request No. 05900110 (April 30, 1990); Lorenzo v. Department of Defense, EEOC Request No. 05950931 (November 6, 1997). Specifically, based on the record before us, complainant appears to possess similar or better qualifications and experience than the selectee. Indeed, we find that the SO's articulated reasons for choosing the selectee are not sufficiently detailed to provide complainant the opportunity to demonstrate that those reasons were a pretext for age discrimination where complainant possesses the same qualifications. Specifically, we note that the affidavit of the SO describes the merits of the selectee only in the broadest terms. However, the record contains no further explanation of how the SO determined the selectee had these described characteristics. The Commission is concerned by this lack of a further explanation, because complainant appears to have better qualifications than those of the selectee. Furthermore, although IP1 provided more specific comments as to the selectee's qualification, we find that these comments also failed to provide sufficient clarity with respect to the broad terms used by the SO. We note that, while that the SO stated that he did not believe that complainant was better qualified than the selectee, Selecting Official (SO) Affidavit at 4, he offered no clarification of why complainant was not better qualified or how complainant performed in the interview. The IP1 also did not offer any clarification regarding which qualifications complainant lacks. Moreover, the record contains no evidence as to what the agency considered to be complainant's shortcomings in his application or his interview. We thus find that the lack of specificity as to why the selectee was the more desirable candidate made it impossible for complainant to prove the reasons were a pretext for discrimination. Moreover, the record reflects that complainant had nearly twelve years of supervisory experience at the agency in relevant areas. Complainant's application reflects that he served in the following supervisory positions with the agency: Chief of Direct Services, Office Procedure Branch (March 1992 to September 1994); Chief, Program Management Support Branch (April 1989 to March 1992); Chief, Field Service Branch (March 1986 to April 1989) and Chief, Claims Training (November 1982 to March 1986). In contrast, the selectee had a total of three years and eight months of supervisory experience as a Supervisory Accountant (March 1998 to March 2000), and Supervisory Risk Management Specialist (February 2001 to October 2002). In this regard, the selectee had only one year and eight months of relevant supervisory experience as a Supervisory Risk Management Specialist. The remainder of her supervisory experience was in a completely separate field of accounting. Complainant also received numerous accolades for his work at the agency, attended numerous leadership and management trainings, and received a performance appraisal from October 2002 to September 2003, which rated his performance as "Superior." The selectee, in comparison, received a rating of "Fully Successful" during the appraisal of her performance from October 2002 to September 2003. In summary, the record is devoid of any explanation as to why complainant was not selected for the position. EEOC v. Target Corp, 460 F.3d 946, 959 (7th Cir. 2006) (employer should have articulated what qualities applicant failed to meet in order to articulate a legitimate, nondiscriminatory reason such that the applicant knows what evidence to present in order to establish pretext); Patrick v. Ridge, 394 F.3d 311, 316-17 (5th Cir. 2004) (employer's statement that employee was not promoted because she was "not sufficiently suited for the job," without further explanation showing how employee failed to meet the employer's standard failed to articulate a nondiscriminatory reason with sufficient clarity to afford the employee a realistic opportunity to challenge the reason as pretext). We note that complainant's qualifications appear equal to, or better than, those of the selectee. We reiterate that the record contains no clarification of the SO's statement that he did not believe that complainant was better qualified than the selectee; the IP1 did not state what qualifications complainant was lacking; and there is no evidence in the record to offer any further clarification. These omissions are especially problematic where complainant appears to have similar or better qualifications, including possessing more supervisory experience and a "superior" performance rating in comparison to the selectee's "fully successful" rating. Accordingly, we find that the agency failed to meet its burden to produce a legitimate, nondiscriminatory reason for choosing the selectee over complainant. In light of complainant's exemplary record of accomplishment, and the agency's failure to provide an articulation of its reasons for not selecting complainant for the position in question, we find the agency failed to overcome complainant's prima facie case of age discrimination. See Prevo v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01972832 (March 10, 2000). Therefore, the Commission finds that complainant has established his claim of age discrimination when he was not selected for the GS-14 Supervisory Risk Management Specialist position. Based on a thorough review of the record and the contentions on appeal, we determine that complainant established that he was discriminated against on the basis of age when he was not offered the position at issue in this case. The agency's finding of no discrimination is REVERSED. The complaint is REMANDED to the agency for further processing in accordance with the ORDER below. ORDER Within thirty (30) days from when this decision becomes final: 1. The agency shall offer complainant the position of Supervisory Risk Management Specialist, GS-14, in the Underwriting Standards Branch, Product Development Division, or a substantially similar position with back pay and related benefits from the date of the selection of the selectee to the date complainant accepts or declines the position. Complainant has 15 days from his receipt of the offer to accept or reject the position. Failure to accept the position within the time frame will be considered a rejection of the offer unless complainant can show that circumstances beyond his control prevented a timely response. 2. The agency shall conduct training for all management officials involved in this case regarding their obligations under ADEA. 3. The agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the compliance officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation of their departure date(s). The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0900) The agency is ordered to post at its in Kansas City, Missouri facility copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408) Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0408) 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 (R0408) This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0408) 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 ___10-07-2008____ Date 1 Due to a new data system, this case has been re-designated with the above referenced appeal number. ?? ?? ?? ?? 7 0120061721 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 8 0120061721