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