Douglas A. MacAllister v. Department of Agriculture
01A13772
June 30, 2004
.
Douglas A. MacAllister,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A13772
Agency No. 990400
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. 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
Whether the agency discriminated against complainant when they canceled
the announcement for the Deputy Administrator position in Boston.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Regional Director, Financial Management, GS-14, at the
agency's Northeast Regional Office (NERO), Food and Nutrition Service
(FNS), in Boston, Massachusetts facility. The position of Deputy Regional
Administrator was first announced on September 22, 2997, for six of seven
FNS regions under vacancy announcement OA-040-97-0. Complainant applied
for the position before the October 21, 1997, closing date by submitting
an application. He was notified that he had been determined to be among
the best qualified applicants for the position in a notice dated January
15, 1998, following he was interviewed by the Regional Administrator.
Complainant was verbally notified in March 1998, that no selection would
be made because the recruitment related outreach had not been adequate
and the pool of applicants was not broad enough from which to make a
selection and that the position would be re-adverstised. Four selections
were made, but no selections were made for the positions in San Francisco
and Boston. Complainant only applied for the NERO position. Although
no reason was given for the non-selection, the letter stated that the
position would be re-announced. The NERO position was re-announced on
May 18, 1998, under vacancy announcement NE-001-98-0, and complainant
re-applied on June 11, 1998. He again was notified that he had been
included on the list of best-qualified candidates. In January, 1999,
complainant received a notice from the Personnel Staffing Specialist,
in FNS Headquarters, stating that no selection had been made and the
position would not be re-announced. Complainant sought EEO counseling
and subsequently filed a formal complaint on February 23, 1999, alleging
that he was discriminated against on the bases of race (Caucasian)
and sex (male) when no selection was made for the position of Deputy
Regional Administrator, GS-15, in Boston, on two separate occasions,
when only whites males were on the Best Qualified (BQ) lists.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its extensive FAD, the agency concluded that complainant established a
prima facie case of discrimination based on race and sex. Specifically,
the agency found that complainant is a member of protected groups
by virtue of his race (Caucasian) and sex (male); he applied for the
position, was found to be among the best qualified (BQ) applicants,
yet was not selected. The agency also found that evidence existed
to establish that race and sex were considered in the decision not to
make any selection. However, the agency concluded that management had
legitimate nondiscriminatory reasons for its actions. Specifically,
the agency stated that no selections were made for the position due to
the lack of diversity of BQ candidates. The agency alleged that the
agency's Under Secretary required that the BQ certificate, not merely
the applicant pool, contain diversity, and that the BQ lists in question
did not include a diverse pool of candidates from which to choose.
The agency further alleged that management made no selection because
the agency's efforts to obtain a more diverse applicant and candidate
pool were aimed at alleviating the under representation of minorities
in the administrative job series.
The agency alleged that in the instant case, race was not the only factor
considered in making the decision not to fill the position, rather, the
agency sought to increase the pool of qualified minority applicants.
The agency found that this decision did not act as an absolute bar to
eventual selection of a non-minority candidate, rather it sought only
to ensure that minority candidates received a fair opportunity to be
considered for the position. The agency alleged that the requirement
that the BQ list have minority candidates did not displace non-minority
employees, nor preclude the eventual selection of a non-minority.
Rather, the agency alleged that this decision only delayed the filling
of the position until greater minority BQ list representation could
be obtained. The agency further concluded that the decision at issue
was limited only to the vacancy announcement at issue, and that it was
a temporary decision. The Under Secretary stated that she did not make
the selection for the position because there was not a diverse pool of
candidates from which to choose. The Under Secretary concluded that
a problem existed with respect to the recruitment process. The Under
Secretary alleged that her objective is to develop or identify effective
means for ensured a diverse pool of talented applicants, for this position
and future vacancies. The Under Secretary also stated that FNS was in
the process of hiring consultants who will assist in the development
of effective approaches to recruitment that meet this objective and to
train Human Resources and other staff who have personnel recruitment
and staff responsibilities.
The agency also alleged that the various discussions about the selection
process did not include any references to a preferred candidate.
Over a period of time, there were a series of discussions about if the
recruitment precess was adequate, but the certificate expired before a
selection could be made.
In its FAD, the agency also alleged that management met its burden of
showing by clear and convincing evidence that complainant would not
have been selected for the position. Specifically, the agency argued
that complainant was not one of the three applicants whose names were
forwarded for selection.
CONTENTIONS ON APPEAL
On appeal, complainant, among other things, contends that there was an
adequate outreach for the position. Specifically, complainant argues
that management sent 130 letters to Boston area Federal Agencies,
another 150 letters to New York City Federal Agencies, letters to 250
African American, Hispanic and women's groups and organizations, personal
recruitment efforts by the Regional Civil Rights Director and more.
Complainant alleges that the Under Secretary's decision constitutes
discrimination against all the candidates on the BQ list. Complainant
contends that the mere fact that the position was cancelled twice, was
clear evidence that the Under Secretary's rejection of the list could
be for no other reason than she did not like it because its contained
only Caucasian males. Complainant also contends that there was a diverse
pool of candidates. Complainant argues that the selecting officials
considered the candidates' qualifications, and decided upon the BQ list
of 10 Caucasian males from a diverse pool of 132 applicants. Finally,
complainant alleges that the Under Secretary's action violates the Merit
Promotion Principles and the promotion process already established at
the agency.
ANALYSIS AND FINDINGS
As a general matter, in the absence of direct evidence of discrimination,
claims of discrimination alleging disparate treatment are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under this analytical framework,
the complainant must first 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 reason was a
factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Next, the
agency must articulate a legitimate, nondiscriminatory reason for its
action(s). Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248
(1981). After the agency has offered the reason for its action, the
burden returns to the complainant to demonstrate, by a preponderance
of the evidence, that the agency's reason was pretextual--that is,
it was not the true reason, or the action was influenced by legally
impermissible criteria. Burdine, 450 U.S. at 253. However, the ultimate
burden of persuading the trier of fact that the agency intentionally
discriminated against complainant remains at all times with complainant.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)
(quoting Burdine, 450 U.S. at 253). We find that complainant failed to
establish a prima facie case of race and sex discrimination.
Complainant may establish a prima facie case of discrimination in the
nonselection context by showing that: (1) he is a member of a protected
class; (2) he was qualified for the position; (3) he was not selected
for the position; and (4) he was accorded treatment different from that
given to persons otherwise similarly situated who are not members of
his protected group. Complainant may also set forth evidence of acts,
from which, if otherwise unexplained, inference of discrimination can
be drawn. Furnco, 438 U.S. at 576. We find that complainant failed to
establish a prima facie case. Specifically, we find that the position
was canceled for inadequacy in the recruitment process. We conclude
that the evidence was not persuasive that the position was canceled
for a prohibited reason. Therefore, we find that complainant failed
to establish that he was treated differently than any other applicants
outside of his protected group.
Even assuming arguendo that complainant established a prima facie case of
discrimination on the bases of race and sex, we conclude that the agency
articulated a legitimate, nondiscriminatory reason for its action. The
Under Secretary articulated the agency's reason for making no selection.
Regarding the first announcement, the Under Secretary testified that
the positions were not filled because they were looking to diversify
the staff at all levels. The record reveals that the Northeast region
did not provide a diverse pool of applicants. The Under Secretary also
stated that “if all applicants are the same race and sex, that does not
constitute a diverse pool of applicants.” The Under Secretary further
stated that similarly, if the certificates of BQ applicants from which
the final selections will be made are also comprised of persons of the
same sex and race, the selection cannot be made from a diverse pool.
The Under Secretary alleged that with respect to the recruitment process
for both the Western and Northeast Regional Offices and the lack of
diversity from the recommended selectees, she had questions about the
adequacy of the recruitment process. The Under Secretary alleged that
given the factors of the general population diversity on both regions, if
recruitment had been properly carried out, a reasonable expectation would
be a diverse pool of applicants that reflected the make-up of the region.
Regarding the second announcement, the FNS Administrator stated that a
similar problem occurred when the position was re-announced, since the
second BQ certificate also did not contain any diversity. The record
reveals that in other regions, where selections were approved, the BQ
certificate contained a diverse group of candidates. Finally, the Under
Secretary stated that the problem was in the recruitment process, and that
the position might be re-announced after the FNS staff had gone through
training about how to recruit a diverse pool of top quality applicants.
The burden returns to complainant to establish that the agency's
explanation was a pretext for discrimination. Upon review, the
Commission finds that complainant has failed to do so. In reaching
this conclusion, we note that complainant has failed to show that the
Under Secretary's concerns over the adequacy of the recruitment process
utilized were a pretext for discrimination. Complainant also failed to
rebut the agency's explanation that the positions were not filled because
management were looking to diversify the staff at all levels, and was
concerned that there was no diversity on the BQ lists. We conclude that
complainant did not show that the agency canceled the position based
upon discriminatory animus toward complainant's race or sex. Finally,
we conclude that the agency's policy requiring appropriate recruitment
efforts to ensure diversity was not a discriminatory policy.
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
June 30, 2004
__________________
Date
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