William H. Tschappat, Complainant,v.Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionMar 9, 2000
01976723 (E.E.O.C. Mar. 9, 2000)

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.