01970666
05-18-1999
Donald McMorrow, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Donald McMorrow v. Department of Commerce
01970666
May 18, 1999
Donald McMorrow, )
Appellant, )
) Appeal No. 01970666
v. ) Agency No. 96-54-0045
)
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision
(FAD) concerning his Equal Employment Opportunity (EEO) complaint of
unlawful employment discrimination 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. Appellant alleges that he was discriminated
against on the bases of race (White) and age (DOB: 11/19/42) when he was
not selected for the position of Bindery Machine Operator Supervisor.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a Bindery Machine Operator in the Finishing Section of the Reproductive
Division at the agency's National Oceanic and Atmospheric Administration.
Believing he was discriminated against as referenced above, appellant
sought EEO counseling and subsequently filed a complaint on October
11, 1995. At the conclusion of the initial investigation, appellant
requested that the agency issue a final decision.<1>
The FAD concluded that appellant established prima facie cases of
race and age discrimination when he demonstrated that a similarly
situated employee not in his protected classes was selected. However,
the FAD concluded that appellant failed to establish that the agency's
explanation for not selecting appellant, specifically that to do so would
have violated nepotism regulations, was a pretext for discrimination.
It is from this decision which appellant appeals. Appellant raises no
new contentions on appeal. The agency requests that we affirm its FAD.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979),
we agree with the agency that while appellant may have established prima
facie cases of race and age discrimination, appellant failed to prove
that, more likely than not, the agency's legitimate, nondiscriminatory
reason for its action was a pretext for discrimination. In reaching
this conclusion, we note that there is no dispute between the parties
that appellant was the best qualified candidate for the supervisory
position and that the selectee, a younger Black male, was considerably
less qualified than appellant. However, had appellant been selected, he
would have been the supervisor of his brother-in-law, a Bindery Machine
Operator in appellant's same Section, in violation of the Office of
Personnel Management regulation at 5 C.F.R. � 310.103, which prohibits
a public official from advocating or actualizing the appointment,
employment, promotion, or advancement of one of his relatives. See 5
C.F.R. � 310.101 et seq.
Appellant alleges that the agency used the anti-nepotism rules to
reject his application and select a minority candidate. However, the
evidence establishes that management, after determining that all of
the Section employees worked the same shift and reported to the same
supervisor, attempted to retitle the position in order to circumvent
the anti-nepotism rules, but Personnel determined that the rules would
still apply. Consequently, management then made a good faith effort to
transfer appellant's brother-in-law to another division.<2> When this
effort was unsuccessful, management acknowledged that the best qualified
applicant, appellant, could not be selected for the position.
Thereafter, the Division Chief requested the Section Chief determine which
employees in the Division could qualify for the position. The Division
Chief also stated that "it would certainly not hurt if any of the
candidates were part of (an) under-represented minority group." The
Division Chief also stated, "If all things were equal, I would prefer
to see a minority candidate selected." Consequently, the Section Chief
focused his Division wide search on minority candidates and encouraged two
employees to apply. However, the Section Chief stated that, to the best
of his knowledge, besides appellant and his brother-in-law, there were no
White employees, 40 years or older, who were qualified for the position.
Under the circumstances of this case, the Division Chief's comments,
viewed in their context, do not rise to the level of discrimination.
The Division Chief specifically stated that "if all things were equal,"
he would prefer to see a minority candidate selected. However, in this
case, there were no equally qualified candidates. The Division Chief,
the Section Chief and other management officials unanimously agreed that
appellant was the best qualified applicant; that he was their first choice
for the position; and had it not been for the anti-nepotism regulations,
appellant would have been promoted. Therefore, after a careful review
of the record, including appellant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
May 18, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 A supplemental investigation was conducted to clarify the record
before the agency issued its final decision.
2 The record establishes that management attempted to have appellant's
brother-in-law reassigned to a position in the Automated Data Processing
Unit but ultimately determined that he was not sufficiently qualified.
Management then explored the possibility of reassignment as a Negative
Engraver, a position which would require three to five years of training
to obtain required proficiency. The Supervisor of the Negative Engraving
Unit was unwilling to hire a trainee. Management stated that when
union officials discovered that management was attempting to reassign
appellant's brother-in-law, they accused management of giving preferential
treatment to a White employee. Management stated that during this time
period, no other employees in the Reproduction Division were reassigned
to positions which required extensive and lengthy training.