01971597
08-26-1999
Garland N. Woodruff, Appellant, v. Earl A. Powell, III, Director, National Gallery of Art, Agency.
Garland N. Woodruff v. National Gallery of Art
01971597
August 26, 1999
Garland N. Woodruff, )
Appellant, )
) Appeal No. 01971597
v. ) Agency No. 95-01
) Hearing No. 100-95-7435X
Earl A. Powell, III, )
Director, )
National Gallery of Art, )
Agency. )
______________________________)
DECISION
Appellant timely appealed the final decision of the National Gallery
of Art (agency), concerning his 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. The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
Appellant filed a formal complaint alleging that the agency discriminated
against him on the basis of his race (African American) when he was not
selected for any one of five positions he applied for from January,
1994 through May, 1994. Following the agency's investigation,
an administrative judge (AJ) issued a recommended decision of no
discrimination without a hearing, pursuant to EEOC Regulation 29 C.F.R. �
1614.109(e)(3). The agency thereafter adopted the AJ's findings and
recommendation. It is from this decision that appellant now appeals.
The record reveals that appellant was employed at the National Gallery
of Art as a Security Guard from November, 1993 to September, 1994. From
January, 1994 to May, 1994, appellant applied for the following positions:
(1) Secretary, GS-318-5, vacancy announcement 94-1; (2) Secretary,
GS-318-5, vacancy announcement 94-6; (3) Secretary, GS-318-5, vacancy
announcement 94-20; (4) Secretary, GS-318-5, vacancy announcement 94-21;
and (5) Correspondence Clerk, PF-309-5, vacancy announcement APO-94A.
Appellant's application for each Secretary position was not referred
to the selecting official because he was not among the top three rated
applicants for those positions. With respect to announcement 94-1,
the Personnel Staffing Specialist (PSS) stated that appellant did not
demonstrate experience in two of the five listed quality ranking factors:
(1) knowledge of museum collection and general art terminology; and
(2) familiarity with photography and standard museum photographic
operations. The record reveals that appellant was not referred for
vacancy announcement 94-6 because he did not indicate that he had
experience in the selective factor knowledge of twentieth-century artists
and their works. The record also reveals that art history research was a
job requirement under vacancy announcement 94-6. Appellant's application
did not indicate that he had knowledge of archival practices and the
principles of archival administration which was a selective factor
for announcement 94-20. According to PSS, this position required the
proper handling of archival materials, cataloging and sorting materials
of the museum. Appellant's application also did not mention any computer
skills, which was a selective factor for announcement 94-21. In addition,
Appellant presented no evidence in the record which suggested that he
met all the requirements of each Secretary position.
Appellant was one of four applicants placed on the best qualified list and
referred to the selecting official for the Correspondence Clerk position
within the Publication Sales Department. The record reveals that because
the Correspondence Clerk position was a privately funded position, its
vacancy announcement differed from the federal position announcements and
did not contain selective factors. The record reveals that the selecting
official (SO) interviewed all the applicants and found appellant and C1
to be the top two applicants. The SO chose C1 over appellant because
C1 had an art history background and knowledge of the merchandise shop.
The record reveals that 90% of the work of the Correspondence Clerk
was to answer questions about merchandise and art history. The record
further reveals that the written position description lists "working
knowledge of the Publications Sales inventory" and "working knowledge of
art and art history to answer art-related questions about the collection."
The undisputed record indicates that C1 studied fine arts in college and
had worked as a sales store checker for the agency for over five months
when he applied for the position. Appellant studied criminal justice
in college and had no work experience in the area of art other than as
a Security Guard with the agency.
MSPB Appeal
Appellant contends for the first time on appeal that this matter is a
mixed case and the agency never informed him of his right to file a Merit
Systems Protection Board (MSPB or the Board) appeal rather than pursuing
his claims through the EEO process. Appellant further requests that this
matter be remanded to the agency presumably to pursue his rights through
the MSPB process. We disagree with appellant and find that the MSPB lacks
jurisdiction over this matter. It is well settled that the Board has
no jurisdiction over an employee's non-selection for promotion, absent an
employment practice applied by the Office of Personnel Management (OPM).
See Woolery v. Office of Personnel Management, 4 M.S.P.R. 142 (1981).
Appellant has not alleged discrimination in an employment practice
applied by OPM, but rather the National Gallery of Art. Accordingly,
we find appellant's assertion that he is entitled to present his claims
before the MSPB to be without merit.
Disparate Treatment
With respect to the four Secretary positions, the AJ found that appellant
failed to establish a prima facie case of discrimination because he did
not show that he was qualified for the positions. The agency explained
that appellant's cover letter did not address the selective factors
and his SF-171 did not indicate experience in the required areas.
Moreover, appellant failed to proffer any evidence to show how he met
the qualifications for the Secretary positions.
With respect to the Correspondence Clerk position, the AJ found
that appellant did establish a prima facie case of discrimination.
Specifically, the AJ found that evidence presented established that (1)
appellant is African American; (2) appellant applied and was placed on
the Best Qualified list of candidates; (3) appellant was interviewed
and not selected for the position; and (4) the individual selected was
outside appellant's protected class.
However, the AJ found that the agency articulated a legitimate,
non-discriminatory reason for its non-selection of appellant.
Specifically, the agency explained that "working knowledge" of
Publications Sales inventory and of art and art history were requirements
for the position. The AJ also found that appellant presented no evidence
indicating that the agency's articulated explanation for its employment
action was unworthy of credence or that the true reasons were based on
race. The AJ noted that appellant failed to produce any evidence that he
had the requisite knowledge of art, art history, or the Publications Sales
inventory or that the SO's description of the position was inaccurate.
Accordingly, the AJ determined that the appellant failed to prove race
discrimination.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56
(1981). The Commission concludes that, in all material respects, the AJ
accurately set forth the facts giving rise to the complaint, and the law
applicable to the case. We further find that the AJ correctly determined
that appellant failed to establish discrimination based on race.
Disparate Impact
Appellant also raised a disparate impact claim. Specifically,
appellant asserted that the agency's requirement of knowledge of
art and art history as a selective factor for clerical<1> positions
excluded African-Americans from consideration for those positions.
While appellant presented no statistical evidence, the agency did
not dispute the fact that African-Americans were under-represented
in the professional, administrative, and technical job categories.
(See Personnel Staffing Specialist's Affidavit, pg. 7).
The AJ assumed that appellant presented a statistical disparity,
but nevertheless found that the agency sufficiently demonstrated a
job-relatedness of the art history background requirements. Moreover,
the AJ determined that the appellant failed to proffer means, other than
requiring employees to possess some knowledge of art history, by which
the agency could accomplish its goal of protecting, researching, and
presenting the nation's art treasures that would have a lesser impact
on African Americans. Accordingly, the AJ determined that appellant
failed to make out a disparate impact claim.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's recommended decision properly determined that the
record did not support a finding of disparate impact. However, while
we agree with the finding of no discrimination, contrary to the AJ,
we find that the statistical evidence in the record does not support
even a prima facie case of disparate impact. In order to establish a
prima facie case of disparate impact, the appellant must show that the
employment barrier in question (e.g. art history knowledge) selects
applicants for hire in a racial pattern significantly different from
that of the applicant pool. See Griggs v. Duke Power Co., 422 U.S. 405
(1975); Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988); Kimble
v. Department of Commerce, EEOC Request No. 05950638 (June 20, 1997).
The statistical evidence in the record overwhelmingly supports the
finding that African Americans show a high rate of representation in
the Professional, Administrative, Technical, Clerical, Other and Blue
Collar positions at the National Gallery of Art during the relevant
time period and currently. (See The National Gallery of Art's 1998
Affirmative Action Plan.) According to the demographic data provided
by the agency's Affirmative Employment Plan for Fiscal Year 1994, the
percentage of African American males who occupy the relevant external
applicant pool for all clerical positions is 8.9% which is compared to
the percentage of African American males who occupy clerical positions
at the National Gallery of Art which is 17.2%. Accordingly, there is
a higher percentage of representation of African American males at the
National Gallery of Art than the relevant local labor force. (See Fiscal
Year 1994 Affirmative Action Program for Minorities and Women, Chart 4.)
With respect to Administrative positions, the record also indicates a
higher percentage of representation of African American males at the
agency compared to the applicant pool (9.3% compared to 3.6%). Id.<2>
While the 1994 Affirmative Action Plan indicates an "under-representation"
of African-Americans in various specific Museum Occupation categories
which fall under, inter alia, the administrative and clerical fields,
we find that such "under-representation" does not indicate disparate
impact. (See Fiscal Year 1994 Affirmative Action Program for Minorities
and Women, Chart 5.) The agency's 1994 Affirmative Action Program
Plan provides an analysis of the racial composition of its internal
labor force and finds an under-representation of minorities in more
specialized positions falling under, inter alia, the broad category of
clerical and administrative positions. However, this analysis by the
agency fails to compare such specialized positions with its relevant
external applicant pool. Accordingly, such analysis, for disparate
impact purposes is meaningless.
We also note that there was no demonstrated connection between the
selective factor at issue here and the under-representation in the
Clerical and Administrative categories.
While we do not find that the record supports a prima facie, case of
disparate impact, the Commission concludes that, in all material respects,
the AJ accurately set forth the facts giving rise to the complaint and
the law applicable to this case. As appellant offered no additional
persuasive evidence in support of his claim on appeal, we discern no legal
basis to reverse the AJ's finding of no discrimination. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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 26, 1999
__________________ ________________________________
DATE Carlton M. Hadden, Acting Director
1The record is unclear whether the positions at issue fall under the
agency's category of "Clerical," "Administrative," or both. Accordingly,
we assume for the purpose of this decision, that the positions at issue
herein fall under both categories.
2We note that African American females are similarly highly represented
at the agency compared to their relevant external applicant pools.