Discrimination case testing Pitco policy
When a three-judge panel found merit in a reverse discrimination case against Pitkin County last month, it set the stage for a showdown in federal District Court.
The county is being sued by longtime local resident Mike McGarry, who says he wasn’t hired on three occasions in the mid-1990s because of the county’s affirmative action policy. The county maintains that race never had anything to do with the decisions to not hire him, and it is willing to go to great length and expense to prove it.
“I was willing to settle from day one,” said McGarry. “They’ve stretched this thing out.”
The case dates back to May 1993, when McGarry first applied to the maintenance crew at the Aspen-Pitkin County Airport. It has since wound its way through the county personnel department, the Equal Employment Opportunity Commission, federal District Court in Denver, the 10th Circuit Court of Appeals in Kansas City and back to court in Denver.
The most recent action on the case came when the appeals court panel found there was enough evidence to justify a trial. The unanimous decision overturned a lower court ruling that McGarry’s case should not go to trial. Because the county did not appeal that ruling, the case will be decided by a jury. A trial date has yet to be set.
Further action on the case could be averted, McGarry said, if the county agrees to pay his attorneys’ fees of about $35,000, eliminate all references to race in its hiring policy, and appoint a citizens’ committee to oversee the county’s work force and hear complaints. McGarry added that he needs to be appointed to the oversight commission if he’s going to settle.
“It’s ridiculous to have a hiring policy that gives preferences to minorities in a county with no history of discrimination,” McGarry said.
Cathy Greer, a labor law specialist hired by the county to do battle with McGarry, said settlement conferences with the plaintiff have so far been fruitless.
“I think the important thing to remember is we’ve always maintained that Mr. McGarry was not denied a position because of his race,” Greer said.
With a trial looming, however, both sides will likely be required to try and settle the case again. That may prove difficult, however, given the differences that now separate McGarry from the county.
The county maintains that the people who were hired for the jobs McGarry sought, an Hispanic and two African-Americans, were better qualified. McGarry, who is white, contends the entire case is about race, although he concedes his hiring woes may have started because of nepotism.
According to court records, McGarry applied to become a building maintenance worker in May 1993 and again in January 1994. The first time he was not granted an interview. He was interviewed for the second opening, but did not get the job. When the same entry-level maintenance position opened for a third time in April 1994, McGarry wasn’t contacted.
All three openings were filled by people who knew an employee or a manager at the airport, according to McGarry’s submission to the Equal Employment Opportunity Commission. The individual ultimately hired for the position for which McGarry interviewed was not a resident of Colorado – a direct violation of the county hiring policy that requires preference go to valley residents.
When McGarry asked county personnel director Cheryl Cumnock about the locals-first policy, he was allegedly told the man was in the process of moving here from Florida.
Attorneys on both sides of the case agree that McGarry complained to Cumnock in February 1993, shortly after he learned that he hadn’t been hired. His original gripe was nepotism and other violations of the county’s written hiring practices. Cumnock agreed to investigate.
According to McGarry’s account, Cumnock confirmed that both successful applicants knew somebody who already worked at the airport, but she denied that it had anything to do with their hiring. Instead, she told him, the others were hired because they were more qualified.
When McGarry pointed out it was an entry level position that doesn’t require prior experience, the supervisor failed to follow the county’s policy of interviewing three candidates for each opening, and the supervisor failed to give preference to a qualified local resident, Cumnock allegedly said, “the last thee hirings were minority hirings, affirmative action hirings.”
“She could have said we don’t like you, or we’re nepotistic, and there wouldn’t have been a case,” said McGarry’s attorney, Thomas Goodreid.
On the basis of Cumnock’s comment, McGarry filed a complaint with the Equal Employment Opportunity Commission. The EEOC rejected McGarry’s claim, so he filed a complaint with the federal court in Denver. Shortly thereafter, he hired Goodreid.
McGarry’s case was then referred to a magistrate whose job was to review the evidence and recommend whether the case should go to trial. The magistrate felt there was enough evidence to proceed, but Judge Daniel Sparr, who will ultimately preside over the case, rejected the recommendation and dismissed the charges on the grounds of insufficient evidence.
McGarry appealed that decision to the 10th Circuit Court of Appeals, which reversed Sparr’s decision. “The 10th Circuit said at this point in the case, they have to weigh the evidence in Mr. McGarry’s favor,” Greer said to explain the county’s setback.
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