01970667
08-01-1999
Joseph M. Lawhorn, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Joseph M. Lawhorn, )
Appellant, )
) Appeal No. 01970667
v. ) Agency No. 95540043
)
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (White) and age (58), 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 he was
discriminated against when he was not selected for the position of
Bindery Machine Operator Supervisor (Position). The appeal is accepted
in accordance with EEOC Order No. 960.001. For the reasons that follow,
the agency's decision is
AFFIRMED.
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. He filed a complaint on October 11, 1995,
alleging that the agency discriminated against him as referenced above.
The agency investigated the complaint<1> and issued a FAD on October 7,
1996, finding no discrimination. It is from this decision that appellant
now appeals.
We concur with the FAD that the appellant established prima facie cases
of race and age discrimination because a less qualified, younger, Black
applicant (SE) was selected for the Position. We also concur with the
finding that the agency articulated legitimate, non-discriminatory
reasons for its decision, namely that appellant was not the best
qualified candidate for the Position, and also that his selection would
have violated the agency's anti-nepotism regulations. We additionally
concur that appellant failed to prove that, more likely than not, these
articulated reasons were a pretext for discrimination. See McDonnell
Douglas v. Green, 411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979); Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253-256 (1981); and Cooper v. Federal Reserve Bank of Richmond,
467 U.S. 711, 715-716 (1983).
We find that the record is clear that although SE met at least the
minimal qualifications for the Position, appellant was far better
qualified. However, appellant's selection would have made him his
brother-in-law's supervisor, in violation of the anti-nepotism regulation,
5 C.F.R. �310.103, prohibiting a public official from advocating or
actualizing the appointment, employment, promotion, or advancement of
one of his relatives. On appeal, appellant argues that this reason is
a pretext, because management could have reassigned either appellant or
his brother-in-law and avoided the nepotism problem, but failed to do so,
allowing for the selection of a less qualified minority candidate.
The record reveals that appellant and his brother-in-law, also a
Bindery Machine Operator in the same Section, were both applicants for
the Position, and neither was selected because of the anti-nepotism
regulations. In fact, the vacancy was advertised twice before,
and cancelled, because the selection came down to appellant or his
brother-in-law, and neither could be selected because of the anti-nepotism
rules. The selecting officials, appellant's Section Chief (SO1), and
Division Chief (SO2), indicated that appellant's brother-in-law was best
qualified for the Position, and that they had tried to reassign appellant
in order to place his brother-in-law in the Position. The record shows
that the reassignment attempts were unsuccessful because appellant was
not qualified for any other positions in the Division. No attempt was
made to reassign appellant's brother-in-law because he was the best
qualified candidate for the Position, and, just as in appellant's case,
it did not appear that there was a suitable position for which he was
qualified. Appellant does not dispute that his brother-in-law was the
best qualified candidate.
Prior to advertising the Position a third time, SO2 instructed SO1 to
recruit for applicants within the Division, and further indicated that
�it would certainly not hurt if any of the candidates were part of (an)
under-represented minority group,� and that �if all things were equal,
I would prefer to see a minority candidate selected.� Two minority
employees were encouraged to apply, but only SE did so.
Contrary to the appellant's assertion, we find that he was not selected
for the Position primarily because his brother-in-law was considered to be
the best qualified candidate, and, had it not been for the anti-nepotism
rules, appellant's brother-in-law would have undoubtedly been selected
over appellant. Moreover, we do not find that SO2's comments rise to the
level of discrimination. In explaining his comments, SO2 acknowledged
these statements, but testified that his full instructions to SO1 were
to encourage all qualified employees to apply, and that he was motivated
only by the desire to increase the number of qualified applicants for the
Position, knowing that the anti-nepotism rules would again automatically
disqualify appellant and his brother-in-law from consideration. In fact,
SO1 testified that none of the employees qualified for the Position
were over 40 years of age or White, and that this was the reason that
it looked as if only minority candidates were encouraged to apply.
Based on these findings, we conclude that the agency's reasons for its
decision are credible, and are not a pretext for discrimination on the
bases of race or age, as alleged by appellant.
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:
August 1, 1999
DATE
Carlton
M. Hadden,
Acting Director
Office of Federal Operations
1The agency also conducted a supplemental investigation prior to issuing
its FAD.