01991201
10-05-2001
John R. Checkett Complainant, v. Elaine Chao, Secretary, Department of Labor, (Office of Federal Contract Compliance Programs) Agency.
John R. Checkett v. Department of Labor
01991201
10/5/01
.
John R. Checkett
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
(Office of Federal Contract Compliance Programs)
Agency.
Appeal No. 01991201
Agency No. 7-10-078
DECISION
John R. Checkett (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the bases of race (white), sex (male) and age (DOB:
5/30/40), 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.<1>
The appeal is accepted pursuant to 29 C.F.R. �1614.405. For the following
reasons, the agency's decision is AFFIRMED.
ISSUES PRESENTED
The issue on appeal is whether complainant has proven by a preponderance
of the evidence that he was subject to unlawful employment discrimination
on the above-cited bases when he was not selected for the SES position of
Regional Director for the Dallas Office of Federal Contract Compliance
Programs (OFCCP) which was announced in Notice of Executive Vacancy,
No. ESA 96-02 dated March 20, 1996.
BACKGROUND
The record reveals that complainant was employed as a Senior Liaison
Officer (Ombudsperson), GM-15, in Seattle, Washington, at the time he
filed the instant complaint. Prior to that, complainant served as a
Regional Director, GM-0360-15 at the agency's offices in Chicago, Illinois
and in Seattle, Washington. In his statement to the EEO Investigator,
complainant argued that in filling the Dallas Regional Director (hereafter
RD) position, the agency's diversity objective took precedence over
Title VII protections. Consequently, complainant argues that a number of
qualified females, non-minorities and minorities were not given serious
consideration for the RD position. In his affidavit, complainant also
argues that his experience at the GM-15 level gave him the knowledge,
skills and technical experience to discharge the responsibilities of RD
and also made him better qualified for the position than the Selectee
who happened to be a GM-14 Hispanic male who was 57 years of age at the
time of his selection to the RD position.
At the conclusion of the investigation, the agency informed complainant
of his right to request a hearing or a FAD. By letter dated April 20,
1998, complainant requested that the designated agency official issue a
decision without a hearing. In a final agency decision dated October 26,
1998, the agency found that complainant failed to establish a prima facie
case of sex discrimination because both he and the Selectee were males.
Further, the agency determined that complainant failed to show that the
reasons it articulated for his non-selection, which are set forth below,
were a pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the investigation ignored key
areas of his complaint. Specifically, complainant asserts that the
Investigator neglected to look into a statement published in a Newsletter
that the agency was particularly interested in Hispanic candidates for
the RD position. Further, complainant contends that the agency failed
to provide him with necessary information to prosecute his complaint,
such as how many agency managers had been promoted from the GS-14 to
the SES level. Similarly, complainant states that the agency improperly
processed his complaint, because it did not afford him the opportunity
to mediate his complaint. Complainant also argues that although a white
male had served as RD in Dallas in the mid-1980's all of the recent RD's
for Dallas were Hispanics. In conclusion, complainant stated that the
reasons articulated by the agency for its actions were not persuasive
and he requested that the Commission review the circumstances surrounding
his non-selection for the RD position.
In responding to complainant's appeal, the agency basically reiterates
the arguments it made in its FAD. In effect, the agency argues that
its FAD is proper and should not be disturbed on appeal.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in Title VII cases is a
three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant has the initial burden of establishing a prima
facie case of discrimination. A prima facie case of discrimination
based on sex or race is established where complainant has produced
sufficient evidence to show that he is a member of a protected class
and he was accorded treatment less favorable than that given to persons
otherwise similarly situated who are not members of his protected class.
Potter v. Goodwill Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975);
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment action.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252
(1981). If the agency articulates a reason for its action, the burden
of production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason
is discrimination or retaliation. Throughout the complaint process,
complainant retains the burden of proof to establish discrimination by
a preponderance of the evidence. It is not sufficient �to disbelieve
the employer; the fact finder must believe the plaintiff's explanation
of intentional discrimination.� St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993) (emphasis in original).
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its action. Specifically,
the agency's Deputy Assistant Secretary for Federal Contract Compliance,
ES-5 (hereafter DAS) stated that she selected the Selectee for the RD
position because:
he was one of the few candidates who received a �very good� rating in
every category of the Ranking Panel's qualification evaluation sheet
for SES positions; <2>
he had served as the Director of both the San Diego and the San Jose
District Offices;
he had consistently demonstrated expert knowledge of all the OFCCP
program areas;
he had represented OFCCP on several National Task forces;
he had served on regional management teams;
he had participated in training the regional staff;
he had demonstrated ability to manage human resources and had few if
any grievances;
he interviewed well and was able to articulate the mission and objectives
of the OFCCP when he met with the Ranking Panel;
he received a strong endorsement for the position from members of his
community;
he led the region in obtaining settlements;
his accomplishments in the District Office exceeded those of some of
the smaller regions including Boston, Seattle and Denver; and
he had an exemplary record of hiring a diverse staff.
In summary, the DAS averred that she chose the Selectee not because of his
Hispanic origin, but because he was clearly the best qualified person for
the position. The DAS also averred that complainant's stated objection
to the selection of the Selectee was without foundation. In this regard,
she noted that no one who happens to be a GM-15 is deemed to be preferred
or better qualified over a GM-14 who also made the selection certificate.
As such, the DAS noted that in a past recruitment action for an SES
position, she selected a GS-14 Caucasian male, over Hispanic and other
racial and ethnic candidates who were at the GM-15 level. As with the
Selectee, the DAS stated that she selected the Caucasian employee in that
recruitment action because of his competence, creativity, leadership,
and successful management skills
Based on the above discussion, we find that the agency has articulated
legitimate non-discriminatory reasons for not selecting complainant
for the RD position. Because the agency articulated a legitimate
non-discriminatory reasons for the challenged personnel action,
complainant must demonstrate that the reasons are pretextual and/or that
the agency was motivated by discriminatory animus in not selecting him
for the RD position.
Except for his bare assertion that the RD position in the Dallas area
has traditionally gone to a Hispanic candidate, complainant presented
no substantive evidence to rebut the reasons articulated by the DAS for
choosing the Selectee for the RD position. The evidence of record supports
the DAS testimony that the Selectee was a highly qualified candidate for
the RD position. In prior judicial decisions, courts have held that in
order for there to be a finding of discrimination in a non-selection case,
the qualifications of the complainant must be clearly superior to that of
the Selectee. See Bauer v. Bailar, 647 F.2d 1037, 1048 (4th Cir. 1981).
Although it is apparent that complainant was a capable manager and highly
regarded by his co-workers and customers, the Commission is unable to find
that his qualifications were clearly superior to that of the Selectee.
CONCLUSION
Therefore, the agency's finding of no sex, race or age discrimination in
relation to complainant's non-selection for the RD position is AFFIRMED.
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).
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
10/5/01
__________________
Date
1 In his formal complaint dated April 11,
1997, complainant cited age as a basis. However, in his request for
a formal agency decision dated April 20, 1998, complainant noted that
after reviewing the agency's comments on the age of the selectee (DOB:
2/5/39) in the investigative file, he decided to drop age as a basis of
his complaint. Accordingly, this decision will only address complainant's
allegation of race and sex discrimination.
2 The ranking Panel consisted of the DAS, the Regional Director of
OFCCP's Atlanta, Georgia region, and the Deputy Director of OFCCP's
national office in Washington D.C.