Betty L. Bostic, Complainant,v.R. L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 23, 2003
01A20852 (E.E.O.C. May. 23, 2003)

01A20852

05-23-2003

Betty L. Bostic, Complainant, v. R. L. Brownlee, Acting Secretary, Department of the Army, Agency.


Betty L. Bostic v. Department of the Army

01A20852

May 23, 2003

.

Betty L. Bostic,

Complainant,

v.

R. L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A20852

Agency No. BODVO9912J0650

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her 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. and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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.

The record reveals that during the relevant time, complainant was employed

as a Military Personnel Management Specialist, GS-205-11 at the agency's

U.S. Army Garrison in Fort McPherson, Georgia. Complainant sought EEO

counseling and subsequently filed a formal complaint on January 13,

2000, alleging that she was discriminated against on the bases of race

(African-American), sex (female), age (D.O.B. 06/28/40), and reprisal

for prior EEO activity when a Management Personnel Specialist position

was upgraded from GS-205-12 to a GS-205-13, making her ineligible to

apply for the position. The team leader vacancy announcement was posted

on July 26, 1999, with the position to be filled at the GS-13 level.

A 44 year old, African American male was subsequently chosen to fill

the position in September 1999.

At the conclusion of the investigation, complainant was informed of

her 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 FAD, the agency concluded that assuming, arguendo, that complainant

established a prima facie case of discrimination on the bases claimed, it

had a legitimate non-discriminatory reason for its action. Specifically,

the position at issue was re-described in order to bring it up to the

level of performance desired by the Deputy Chief of Staff for Personnel

and Installation Management and was done by Civilian Personnel Operations

Center. Further, the classification of duties and responsibilities was

based on the position description provided by management. The agency

concluded that other than her initial assertions, complainant presented

no direct evidence, documentation, or witness testimony to support her

claim or rebut management's articulations, and issued a finding of no

discrimination.

On appeal, complainant contends that the three witnesses she identified

to support her claims were not contacted, and that management did not

do enough to ensure that she could have applied for the position, as

the position could have been announced at a GS-12 level. The agency

submitted no arguments on appeal.

Assuming, arguendo, that complainant established a prima facie case of

age, race, sex, and reprisal discrimination the Commission concurs with

the agency's finding of no discrimination. Further, the Commission finds

that complainant failed to present evidence that more likely than not,

the agency's articulated reasons for its actions were a pretext for

discrimination. Complainant argued that the agency officials involved

in her prior EEO complaint may have �collaborated� to remove duties from

her position to ensure that the position remained a GS-11. A review of

the records indicates that as a part of a prior EEO settlement, reached

on July 19, 1999, a desk audit was conducted on November 5, 1999 to

review the duties complainant performed. The results of the audit were

reported on November 23, 1999, and indicated that complainant's position

was properly rated at the GS-11 level. Other than her bare assertion, we

find that complainant has not presented persuasive evidence that collusion

occurred between management and the personnel staff auditing the position.

The records reveals that the decision to upgrade the position was made

in March 1999, well before the settlement of complainant's complaint,

and the eventual the posting of the GS-13 position on July 26, 1999.

Further, even if a determination had been made to upgrade the position,

it would still have been too late for complainant to apply for the

position as the vacancy announcement closed in August, and the audit

results were released in November 1999.

In regards to complainant's contention on appeal that her witnesses

were not called, the record indicates that two of the witnesses she

identified would have testified regarding her work performance and

her attitude toward her work. Report of Investigation (ROI) p. 71.

We note however, that these issues were not in dispute and the record

indicates that complainant received the highest possible rating from

the Responsible Management Official (RMO). ROI pp. 60-61. The third

witness would have testified as to how management went to great lengths

to upgrade position after it was determined by qualified Desk Auditors

that the employees filling those positions were working within their

present grade levels. Here however, complainant failed to show that this

testimony was relevant to her the non-selection in the instant complaint.

In regards to complainant's contention that the position should have been

announced at the GS-12 level so that she could compete for the position,

while it may not have been fair to her how the position was announced,

there is no evidence that the vacancy announcement was discriminatory.

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

May 23, 2003

__________________

Date