01a51068
12-23-2005
Dustan J. Van Vleet, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Dustan J. Van Vleet v. Department of Agriculture
01A51068
December 23, 2005
.
Dustan J. Van Vleet,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A51068
Agency Nos. USDACR 98-0859; 99-0405
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
ISSUE PRESENTED
The issue presented in this appeal is whether the agency discriminated
against complainant when it did not make a selection for the position
of Deputy Regional Administrator because of a lack of diversity on the
Best Qualified list.
Background
The record reveals that during the relevant time, complainant was employed
as the Director, Financial Management at the agency's Food and Nutrition
Service, Midwest Regional Office. Complainant sought EEO counseling
and subsequently filed formal complaints on July 3, 1998 and February
22, 1999. He alleged that the agency discriminated against him on the
bases of race (Caucasian), sex (male), disability (Veteran's status)
and in reprisal for EEO activity when:
(1) he was notified that no selection was made the position of Deputy
Regional Administrator under Vacancy Announcement OA-040-97-0 (Vacancy
#1) for the Northeast Region and for the Western Region;
(2) he was not selected for the position under Vacancy Announcement #1;
(3) he was not selected for the position of Deputy Regional Administrator
for the Northeast Region under Vacancy Announcement NE-001-98-0 (Vacancy
Announcement #2);
(4) he was not selected for the position of Deputy Regional Administrator
for the Western Region under Vacancy Announcement WN-002-98-0 (Vacancy
Announcement #3);
At the conclusion of the investigation, complainant was informed of his
right to either request a hearing before an EEOC Administrative Judge
or to receive a final decision by the agency. Complainant elected that
the agency issue a final decision.
In its FAD, the agency concluded that complainant stated a prima facie
case of discrimination when he was notified that no selection was made
for Vacancy OA-040-97-0 because there was sufficient evidence that race
and sex were considered in the decision not to make a selection. However,
the agency concluded that the Undersecretary gave legitimate reasons for
not making a selection by stating that the applicant pool and ultimately
the Best Qualified (BQ) list for the Boston and San Francisco positions
were not diverse. According to the agency, the record reflected support
for the Undersecretary's conclusion because the BQ lists contained little
to no diversity in the list of candidates meaning that all or mostly all
were Caucasian males. This was true even though the statistical data
of the civilian labor force for these geographic areas would suggest
otherwise, the agency stated.
The agency also found that the Undersecretary's action was grounded in
efforts to address the results reported in its Affirmative Employment
Plan. The Plan indicated an under-representation of minorities at the
GS-15 grade level in the administrative category in the Boston (Northeast)
office. The agency concluded that the Undersecretary's goal of increasing
the pool of minority applicants was permissible and not discriminatory.
It found that no quotas were sought and that by increasing outreach
efforts, there would be an increase in the presence of minorities on
the best qualified list. This was not a bar to the selection of a
non-minority candidate and was a valid non-discriminatory goal.
Moreover, the agency concluded that complainant did not demonstrate that
discrimination occurred under the second set of vacancy announcements
(Vacancy Announcements #2) because he was not among the candidates
who were recommended to the Undersecretary. For both the Northeast
and Western Region vacancies, complainant was among those on the Best
Qualified list but was not among those recommended by the Regional
Administrators to the Undersecretary. In addition, all of those
recommended to the Undersecretary for selection were white males.
According to the agency, no selections were made under the second set of
vacancy announcements because no agreement could be reached on a selection
and again, because of the lack of diversity in the make-up of the Best
Qualified (BQ) list. The agency found that the Undersecretary's reasons
were supported by information showing that the civilian labor pool for
the relevant areas would likely produce a more diverse BQ list than
what was provided to her.
The agency further found that complainant did not state a prima facie
case of discrimination based on his alleged disability and that his
veterans status was not enough bring him within the protection of the
Rehabilitation Act. Even assuming he did state a prima facie case,
the agency found that for the same reasons described above, he failed
to establish the agency's reasons were a pretext for discrimination.
On appeal, complainant contends that the agency's actions in not
making a selection and returning a valid promotion certificate violated
personnel rules and regulations. He contends that the Undersecretary's
assertion that there were inadequate outreach efforts was a pretext for
discrimination and that there is no allowance under personnel rules for
returning a certificate to promote diversity. Complainant argues that
the agency's actions had a disparate impact on those who applied for
the position. He argues that recruitment efforts were deemed adequate
for other vacancy announcements and therefore, they should have been
adequate for the vacancies in question. The agency submitted no
additional comments on appeal and requests that we affirm its FAD.
ANALYSIS AND FINDINGS
First we set forth the standard of proof in a case alleging disparate
treatment. Where there is no direct evidence of discrimination, the
allocation of burdens and order of presentation of proof in a Title
VII case alleging discrimination is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see, Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases); In analyzing a disparate treatment
claim under the Rehabilitation Act, where the agency denies that its
decisions were motivated by complainant's disability and there is no
direct evidence of discrimination, we apply the burden-shifting method
of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica
Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA,
179 F.3d 929, 933-34 (D.C.Cir. 1999).
The burden of production then shifts to the agency to articulate a
legitimate, non-discriminatory reason for the adverse employment action.
In order to satisfy his burden of proof, complainant must then demonstrate
by a preponderance of the evidence that the agency's proffered reason is
a pretext for discrimination. Id. 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. McDonnell Douglas, 411 U.S. at 802. Next, the agency must
articulate a legitimate, nondiscriminatory reason(s) for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful, then the complainant must prove,
by a preponderance of the evidence, that the legitimate reason(s)
proffered by the agency was a pretext for discrimination. Id. at 256.
The Commission finds that complainant failed to establish an inference of
discrimination from the agency's failure to make a selection with respect
to Vacancy Announcement #1. The evidence demonstrated that the agency
did not cancel the vacancy announcement for a prohibited reason, but
only because it sought to improve its recruitment process and to obtain a
diverse pool of applicants and a BQ list from which to make a selection.
See Ghiorzi v. Department of Agriculture, EEOC Appeal No. 01A13771 (June
30, 2004); Canavan v. Department of Agriculture, EEOC Appeal No. 01A13797
(June 30, 2004); Magnarelli v. Department of Agriculture, EEOC Appeal
No. 01A14175 June 30, 2004). This also holds true for the agency's
failure to make a selection for Vacancy Announcements #2, #3 and #4.
Even assuming arguendo that complainant stated a prima facie case, the
Undersecretary gave legitimate reasons for why no selection was made
- namely that no agreement could be reached on a selection, that she
was looking to diversify her staff at all levels and that she sought
to ensure that members of minority groups had a fair opportunity to
compete. Id. She stated that in the Northeast and Western regions,
she was not confident in the recruitment process because there was no
diversity in the pool of candidates on the BQ list. The Commission finds
that her conclusion that recruitment efforts had apparently failed in
geographical areas where more diversity would be expected, was legitimate
and was borne out by information contained in the agency's Affirmative
Employment Plan.
Since the agency stated legitimate non-discriminatory reasons for its
actions, complainant must come forward with evidence that the agency's
reasons are a pretext for discrimination. The Commission concludes that
he failed to do so. In this respect, complainant failed to demonstrate
that the agency's goal of seeking diversity in the BQ candidate list
was not legitimate given the agency's report of an under-representation
of minorities from several different groups at the GS-15 administrative
level.
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.
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
December 23, 2005
__________________
Date