01976723
03-09-2000
William H. Tschappat, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
William H. Tschappat v. Department of Labor
01976723
March 9, 2000
William H. Tschappat, )
Complainant, )
)
v. )
) Appeal Nos. 01976644, 01976723
Alexis M. Herman, ) Agency Nos. 5-07-087, 5-07-127
Secretary, )
Department of Labor, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated appeals from two final agency decisions
(FADs) concerning his complaints of unlawful employment discrimination
on the basis of sex (Male), age (DOB April 9, 1933), and retaliation
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> Complainant
alleges that he was discriminated against when he was not selected
by the agency for either of two positions for which he had applied.
The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37, 659
(1999) (to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the agency's decision is AFFIRMED.
BACKGROUND
The record reveals that during the relevant time period, complainant
was employed by the agency as a Safety and Occupational Specialist,
GS-13, with the Occupational Safety and Health Administration (OSHA)
in Washington, D.C. In 1995, complainant submitted an application for
a Safety and Occupational Health Manager, GS-14, position located in
Des Moines, Iowa. Later that year he submitted an application for a
Supervisory Safety and Occupational Health Specialist position with OSHA
in Kansas City, Missouri. The agency found Complainant to be qualified
for both positions but ultimately selected him for neither.
Believing himself to be a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed separate formal complaints charging
discrimination in his nonselection for the Des Moines<2> and Kansas
City<3> positions. The agency accepted the complaints for investigation.
At the conclusion of the investigations complainant was furnished with
copies of the investigative reports. Complainant requested hearings
in both cases but withdrew those requests before any hearing was held.
Accordingly, the agency issued final decisions on the basis of the
investigative record.
Both FADs concluded that complainant had not been discriminated against,
finding that the agency had articulated a legitimate, nondiscriminatory
reason for its selections and that Complainant had failed to prove those
reasons to be pretexts designed to conceal discriminatory animus.
From the FADs complainant brings the instant appeals.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and its progeny, Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981);
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), and 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) the Commission finds that complainant failed
to prove with respect to either of the nonselections, that the agency's
articulated reasons for its actions were pretexts for discrimination.<4>
Appeal No. 01976644 (Kansas City Position)
According to the agency, it chose the selectee for the position rather
than complainant because the selectee had: 1) recent experience
in an area office; 2) good organizational, computer, technical and
administrative skills; 3) "positive feedback" from coworkers and a
supervisor; and 4) experience with government "re-design." Complainant
contends that his qualifications were superior to those of the selectee
in that he had more than 29 years of experience in the area of safety
and health, six years of experience at the GS-13 level and a variety of
professional certifications.
We find that although complainant was fully qualified for the position,
he failed to establish that his qualifications were so plainly superior
to those of the selectee to permit an inference of discriminatory animus.
Vanek v. Department of the Treasury, EEOC Request No. 05940906 (Jan. 16,
1997); Patterson v. Department of the Treasury, EEOC Request No. 05950156
(May 9, 1996). The agency's principal reason for preferring the selectee
to complainant was that the selectee had recent field experience in
an OSHA area office, while complainant did not. This is a legitimate
nondiscriminatory reason for the agency's actions. Complainant has
adduced no evidence that the agency's reason for its actions was a
pretext designed to conceal discrimination.
Appeal No. 01976723 (Des Moines Position)
According to the agency, it chose the selectee for the position
rather than complainant because the selectee had: 1) received an
"Outstanding" rating during the relevant rating period; 2) served as an
OSHA regional field supervisor for four years; 3) demonstrated current
experience supervising safety specialists and engineers; and 4) submitted
documentation reflecting a high quality of work in a supervisory position
over a three year period.
We find that with respect to this position, as with the Kansas City
position, complainant failed to establish that his qualifications were
so plainly superior to those of the selectee to permit an inference of
discriminatory animus. The agency's principal articulated reason for
preferring the selectee over complainant was that complainant did not have
supervisory experience in OSHA and had received a lower performance rating
than the selectee had received. These are legitimate nondiscriminatory
reasons for the agency's actions. Complainant has adduced no evidence
that the agency's reasons for its actions were pretexts designed to
conceal discrimination.
CONCLUSION
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.<5>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 (3O) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (2O) 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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
3-9-00
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:
3-9-00
Date
__________________________
Equal Employment Assistant
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.
2Complainant's nonselection for the Des Moines position was the subject
of agency complaint number DCR507087, filed April 16, 1995, and Appeal
No. 01976723.
3Complainant's nonselection for the Kansas City position was the subject
of agency complaint number DCR507127, filed July 12, 1995, and Appeal
No. 01976644.
4Although 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 where, as here, 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 s/he has demonstrated by a
preponderance of the evidence that the agency's reason for its actions
was a pretext for discrimination. Id.; see also United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).
5We note that, in connection with both complaints, complainant asserted
broadly that the agency failed to select him because it was pursuing
an agency-wide policy of discriminating against older male employees.
The record contains no evidence whatever substantiating this allegation.