01976497
05-31-2000
Graciano Velez, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Graciano Velez v. Department of Defense
01976497
May 31, 2000
Graciano Velez, )
Complainant, )
) Appeal No. 01976497
v. ) Agency No. COL-95-IG-034-E
)
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
)
)
DECISION
Complainant timely filed an appeal with the Commission from a final
decision of the agency concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. � 2000e et seq.; and the Age Discrimination in Employment Act
of 1967, 29 U.S.C. � 621 et seq. Pursuant to 64 Fed. Reg. 37,644, 37,
659 (1999) (to be codified at 29 C.F.R. � 1614.405), the Commission
accepts the complainant's appeal from the agency's final decision in
the above-entitled matter.<1>
Complainant filed a complaint in which he alleged:
(1) that the agency discriminated against him on the bases of race and
color (white), gender, national origin (Hispanic), and age (43) by not
referring his application to the selecting official for the position of
GS-14 program analyst; and
(2) the agency's use of a selective placement factor as a mechanism
to screen out applicants for the GS-14 program analyst position had an
adverse impact on Hispanics, males, and people over 40.
DISPARATE TREATMENT
To prevail on his disparate treatment claim, complainant must satisfy
the three-part test fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Although this test developed in
the context of Title VII, it also applies to claims brought under
the ADEA, except that complainant must prove that his age was the
determining factor in the agency's failure to refer his application
to the selecting official. Johnson v. United States Postal Service,
EEOC Request No. 05910560 (September 17, 1991); Forney v. Department of
Agriculture, EEOC Request No. 05900988 (October 30, 1990).
The complainant must initially establish a prima facie case by
demonstrating that he was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. Once complainant establishes
a prima facie case, the burden shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is pretextual. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the Navy,
EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant did establish a prima facie case,
the agency's reason for screening out his application, as articulated
by the classification specialist responsible for conducting the initial
review of the applications, was that complainant did not address the
selective placement factor in his application. Investigative Report (IR)
33, 193. According to the vacancy announcement, the selective placement
factor for this position was demonstrated skill in policy formulation
and program execution in either natural resource management, public
land management, pollution prevention, or environmental compliance. The
vacancy announcement specifically stated that the selective placement
factor was a screen-out mechanism, and that applicants who did not meet
this factor would not receive consideration for the position. IR 34.
A review of complainant's application indicates that he did not submit the
required supplemental statement addressing the selective placement factor.
IR 37-73. According to statements from management officials involved
in the selection process, the selective placement factor was necessary,
due to the interdisciplinary nature of the position. IR 193, Supplemental
Investigative Report, Tab 11, p. 13. While complainant insists that the
classification specialist acted in a discriminatory manner in screening
out his application, he presents no evidence which contradicts the
testimony given by the classification specialist, or which undermines
her credibility as a witness. We therefore find that complainant has not
established that the classification specialist intentionally discriminated
against him when she screened out his application. Moreover, the fact
that the selectee for the position was a 45-year-old white male negates
any inference of race, sex or age discrimination in connection with the
selection itself. We now turn to complainant's disparate impact claim.
DISPARATE IMPACT
In a disparate impact case, the burden rests on complainant to show
that a challenged policy or practice, although facially neutral, has
a significant discriminatory impact on his protected group. Griggs
v. Duke Power Co., 401 U.S. 424, 430-32 (1971); Connecticut v. Teal,
457 U.S. 440, 446 (1982); Watson v. Ft. Worth Bank & Trust, 487 U.S. 977,
987 (1988); Kulis-Robitaille v. Department of Veterans Affairs, EEOC
Request No. 05901044 (October 25, 1990). To establish a prima facie
case of disparate impact, complainant must: (1) identify the specific
practices or policies being challenged; (2) show statistically significant
disparities; and (3) show a nexus between (1) and (2). Watson, 487
U.S. at 994; Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656-58
(1989); D'Leo v. Department of the Navy, EEOC Petition No. 03920085
(November 20, 1992). In this case, the selective placement factor was
the neutral employment practice that caused complainant to be screened
out of the selection process for the GS-14 program analyst position.
Because the selectee for that position was a white male over forty, we
need only consider whether the agency's use of the selective placement
factor had an adverse impact on Hispanics.
The proper comparison in a disparate impact case is between the
racial composition of the at-issue jobs and the racial composition of
the qualified population in the relevant labor market. Wards Cove,
490 U.S. at 650, quoting Hazelwood School District v. United States,
433 U.S. 299, 307-08 (1977); Palmer v. Schultz, 815 F.2d 84, 91 n. 6
(D.C. Cir. 1987); Brown v. United States Postal Service, EEOC Request
No. 05940647 (June 8, 1995). In this case, complainant was screened out
of the group of candidates rated as having met the selective placement
factor. We must therefore compare the percentage of Hispanics who were
rated as having met the selective placement factor with the percentage
of Hispanics in the relevant labor market for the GS-14 program analyst
position.
Whether the relevant labor market for a particular job should be
constructed from demographic measures like civilian labor force statistics
or applicant flow data depends upon the extent to which specialized
knowledge and skills are demanded for that job. Demographic statistics
are useful when the jobs at issue require no special expertise. Johnson
v. Transportation Agency of Santa Clara County, California, 480 U.S. 616,
631-32 (1987); Bragdon v. Department of Agriculture, EEOC Request
No. 05890700 (April 25, 1990). Where special qualifications are required
to fill the job, however, demographic indicators like the civilian labor
force statistics may have little probative value. Hazelwood, 433 U.S. at
309; Mayor of the City of Philadelphia v. Educational Quality League,
415 U.S. 605, 620-21 (1974). In such situations, a comparison should
be made between the employer's work force and those in the labor force
who possess the relevant qualifications, i.e., the qualified applicant
pool. Wards Cove, 490 U.S. at 650-51; Johnson, 480 U.S. at 632; Hazelwood,
433 U.S. at 308; Bragdon, supra.
The GS-14 program analyst position in this case is a high-level,
interdisciplinary position requiring a great deal of specialized
knowledge, skills and abilities, including: expertise in environmental
laws and regulations; knowledge of programs relating to natural resources
management and environmental compliance; and skill in planning and
conducting complex studies of environmental issues with government-wide
scope. IR 34. Consequently, the 129 candidates who responded to the
vacancy announcement would constitute a much more accurate representation
of the relevant labor market for this particular position than would
civilian labor force statistics. Bragdon, EEOC Request No. 05890700.
The applicant flow data in this case should therefore be used to conduct
the disparate impact analysis, unless it could be shown that this data
is tainted. International Brotherhood of Teamsters v. United States, 431
U.S. 324, 365-66 (1977); Mister v. Illinois Central Gulf Railroad Co., 832
F.2d 1427, 1435 (7th Cir. 1987); Equal Employment Opportunity Commission
v. Joe's Stone Crab, Inc., 969 F. Supp. 727, 734, 736, (S.D. Fla. 1997).
Factors to consider in determining whether applicant flow data is tainted
would include the employer's reputation for hiring minorities, and whether
the employer recruits by word-of-mouth rather than advertising. See Joe's
Stone Crab, 969 F. Supp. at 736. None of those factors is present in
this case. The GS-14 program analyst position was openly advertised,
with the area of consideration being identified as "all sources"
(i.e., nationwide). The vacancy was held open for four weeks. IR 34.
There are no indications in the record that the agency had a reputation
of not hiring Hispanics for high level positions. We therefore find that
the applicant flow data in this case is not tainted, and could properly
be utilized to determine whether complainant established a prima facie
case of disparate impact.
The agency presented data indicating that one hundred and twenty-nine
people responded to the vacancy announcement, seven of whom (5.4%)
were Hispanic. Seventy-eight people were rated as having met the
selective placement factor, of whom four (5.1%) were Hispanic. IR 103-05.
The difference in these percentages would be statistically significant if
the probability of this difference occurring by chance is less than five
percent, under the Fisher's Exact Test or other appropriate statistical
tests. Castaneda v. Partida, 430 U.S. 482, 496 n. 17 (1977); Hazelwood,
433 U.S. at 308, 333 nn. 14, 17; Eastland v. Tennessee Valley Authority,
704 F.2d 613, 622 n. 12 (11th Cir. 1983), cert. denied 465 U.S. 1066
(1984); D'Leo v. Department of the Navy, EEOC Petition No. 03920085,
& n. 4 (the Fisher's Exact Test is a statistical analysis used by the
Commission to evaluate the probability of the adverse action occurring by
chance). Applying the Fisher's Exact test, we find that the likelihood
of the difference between the two percentages occurring by chance is
approximately fifty-seven percent, which is statistically insignificant.
We therefore find that complainant has not established a prima facie
case of disparate impact with respect to the effect of the selective
placement factor on Hispanic applicants.
CONCLUSION
After consideration of the record as a whole, and for the foregoing
reasons, the Equal Employment Opportunity Commission AFFIRMS the agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
05-31-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.