01997029bond
01-05-2001
James E. Bond, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
James E. Bond v. Navy
01997029
January 5, 2001
.
James E. Bond,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01997029
Agency No. DON 97-00187-049
DECISION
Complainant timely initiated an appeal from a final agency action
(FAD), concerning his 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. <1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges that he was discriminated
against based on race (black) when the agency: (1) added new requirements
to the position of Supply Management Officer, GS-2003-14, which prevented
him from qualifying for the position; and (2) maintained, on a continuous
basis, a policy of racial discrimination designed to prevent him from
attaining GS/GM-14 level positions by utilizing subjective selection
considerations, imposing requirements designed to ensure the selection
of white employees for temporary promotions, thereby allowing white
employees to gain necessary experience for filling the positions on a
permanent basis, mentoring white employees, and utilizing the Management
and Superintendent Development Programs.
BACKGROUND
The record reveals that at the time of the complaint, complainant was
employed as a Maintenance Superintendent, GM-1601-13, and assigned as
the Operations Director at the Yorktown Weapons Station, Yorktown, VA,
by the Navy Public Works Center, Norfolk, VA. Believing he was a victim
of discrimination, complainant sought EEO counseling and, subsequently,
filed a formal complaint on May 7, 1997. At the conclusion of the
investigation, complainant was informed of his right to request a hearing
before an EEOC Administrative Judge or, alternatively, to receive a final
decision by the agency. When complainant failed to respond within the
time period specified in 29 C.F.R. � 1614, the agency issued a final
decision on August 12, 1999.
Supply Management Officer, GS-2003-14
The agency advertised the position of Supply Management Officer,
GS-2003-14, which closed November 15, 1996. There were eleven applicants,
including complainant, who applied for the position. Complainant was
found ineligible during the initial screening of the applications,
because his application did not address the specialized experience
required to qualify for the position, including, but not limited to:
(1) working with regulations and policies pertaining to the Defense
Base Operating Fund (DBOF) financial system, the Navy supply system,
and Navy procurement and contracting operations; (2) directing various
contract administration functions required for acquisition of supplies
and services, and serving as principal supply contracting advisor; and
(3) working as principal project manager of material procurement and
distribution support for mission critical jobs, including key support
for a large in-house construction program. All of those criteria were
rating factors derived from the Supply Management Officer position
description, and were a part of the position's vacancy announcement.
Eight applicants, seven white and one black, were found to be eligible
for further consideration. Three applicants, one white, one of unknown
race, and complainant, were found ineligible. The selectee was white.
Complainant asserted that he was qualified for the position, because
Employee A, then a GM-13, was detailed to a GM-13 Supply Management
Officer position in 1987-1988 and was given an award for serving in
the position, even though Employee A had no contract experience. In
complainant's view, this meant that contract experience was not essential
in performing the Supply Management Officer, GS-14 position.
The FAD found that complainant was unqualified for the Supply Management
Officer, GS-14 position, and thus that complainant failed to establish
a prima facie case. The agency acknowledged that it could not be
determined what the duties of Employee A during the detail in 1987-88
were, because the position description had been updated twice since
that time. Nevertheless, it was undisputed that contract experience
was a requirement. The agency stated that the position description
included in the record was rewritten in 1994 in order to ensure
that the requirements were up-to-date and accurate. The record also
indicates that the position description for the GS-14 position was
revised just prior to the vacancy announcement. September 9, 1997,
Fact Finding Conference (Agency Investigator) Transcript (hereafter
cited as Tr.) at 126, 136. One of the most significant changes was adding
the requirement that the applicant be able to work with regulations and
policies pertaining to the DBOF financial system, the Navy supply system,
and Navy procurement and contracting operations, with special emphasis
on the DBOF financial system. It was acknowledged, that the contract
and procurement experience requirements had not changed.
On appeal, complainant argues that Employee A received the 1987 detail
so he could gain contract experience as part of a plan to groom him for
a department head position. Complainant also argues that he was not
provided the opportunity for the 1987 detail, because the agency did
not want a black male to become a department head. Finally, complainant
essentially argues that since Employee A performed well without previous
qualifying contract experience, this was a �screen-out� requirement
intended to keep him from being able to qualify for the GS-14 job.
In response, the agency states that it properly excluded complainant from
consideration of the Supply Management Officer position. The agency
again responds that complainant did not meet the qualifications for
the position. The agency thus emphasized that it had legitimate,
non-discriminatory reasons for revising the supply management officer
position description to require DBOF experience and retain the requirement
for procurement experience. The agency further argued that complainant
cannot demonstrate that the agency's legitimate, non-discriminatory
reasons for revising the Supply Management Officer position description
was a pretext to discriminate against him based on race.
Other Promotion Opportunities
Complainant argued that the agency had a policy of doing whatever was
necessary to ensure that black employees were ineligible for positions at
the GS/GM-14 level. Complainant argued that the policy was implemented
by such mechanisms as changing the criteria and titles for positions,
using �screen-out� factors when advertising positions, detailing white
employees to positions to allow them to acquire experience, and mentoring
white employees. Complainant thus suggested that he had been excluded for
applying from such jobs as a civilian Site Manager, involving Employee B,
and as a Transportation Superintendent Head, involving Employee A.
The FAD found that, other than complainant's assertions and speculations,
he failed to provide any evidence that management's stated reasons for
their actions were pretext for discrimination or unworthy of credence.
The FAD pointed out that complainant testified that he had no evidence
the agency mentored white employees. According to the FAD, management
followed the agency's merit promotion instruction regarding details
and promotions. More importantly, according to the FAD, the record
showed that complainant and another black employee were also detailed
and temporarily promoted to the GM-14 level. The FAD concluded that
the record did not support complainant's allegations that agency
management systematically excluded blacks from promotional details and
other career-developing opportunities. It pointed out that complainant
acknowledged graduating from the Superintendent Development Program,
and that of the six black employees (including complainant), who might
have been eligible for promotion to GS/GM-14, at least two received
temporary details to GM-14 positions. The FAD thus concluded that the
complainant failed to show pretext on the part of the agency.
On appeal, complainant argues that the agency discriminatorily used
�screen-out� factors for qualification standards with respect to
positions, e.g., Supervisory General Engineer, GS-801-14 position,
to serve as a Site Manager. Thus, in complainant's view it was not
necessary to fill this position with an engineer. Complainant also
argues that the agency has discriminatorily detailed and promoted
individuals (white males), who did not have the requisite qualifications
for the positions, e.g., Employee A detailed on October 21, 1990,
as Transportation Superintendent, GM-1601-13, of the Transportation
Department without the necessary one year transportation specialized
experience.<2> According to complainant, there were also three other
white males that did not meet the one year specialized experience
requirement, who were promoted to or voluntarily reassigned to the
Transportation Department. This is especially significant to complainant,
because in 1985 he was involuntarily reassigned from a Transportation
Superintendent position, to the Maintenance Department as a Supervisory
Maintenance Project Coordinator, and never given the opportunity to
be detailed back to the position.<3> According to complainant, the
proffered reason for the reassignment was that complainant did not meet
the one year specialized transportation experience requirement when the
staffing specialist qualified him in 1983.
In response, the agency denies that it maintained a policy of racial
discrimination designed to prevent complainant from obtaining positions at
the GM/GS-14 level. According to the agency, the personnel actions cited
by the complainant do not demonstrate a policy of racial discrimination
designed to prevent the complainant from obtaining positions at the
GS-14 level. It also contends that the complainant has not established
the existence of a mentoring program for Caucasian employees. The agency
additionally argues that the complainant has not established that the
agency executes personnel assignments to favor Caucasian employees
and/or prevent the complainant from obtaining GM/GS-14 positions. More
specifically, with respect to the Transportation Superintendent matters,
the agency argues that the allegations are untimely, and that in any
event, complainant never applied for the position. With respect to the
Site Manager matter, the agency argues that the allegations should be
dismissed as identical matters filed and decided under a previous formal
EEO complaint filed by complainant.
FINDINGS AND ANALYSIS
Preliminary Matters
Procedural
The agency, on appeal, argues that, with respect to complainant's
Transportation Superintendent promotion claims, the allegations are
untimely. The agency should have raised this objection in its FAD.
See FAD at 5, 7. Since it did not do so, the agency waived its right.
Accordingly, we will further consider complainant's Transportation
Superintendent promotion claims.
The agency, on appeal, also argues that with respect to complainant's
Site Manager promotion claims, the allegations have already been before
the Commission in another proceeding. Accordingly, the agency argues
that the Site Manager promotion claims should be dismissed as identical
matters filed and decided under a previous formal EEO complaint filed
by complainant.
In the present proceeding, complainant challenges the agency's decision
to temporarily promote on September 15, 1996, Employee B from Supervisory
General Engineer GM-0801-13, to the Site Manager position (Supervisory
General Engineer, GM-801-14) at Yorktown, VA, for 120 days.<4> The
complainant uses this as an example of �screen-out�, i.e., the agency's
requirement that in order to be a Site Manager, Supervisory General
Engineer, GM-801-14, one must have a qualifying engineering bachelor's
degree and professional engineer's license. In complainant's view, it
was not necessary to fill this position with an engineer, when there was
an entire Engineering Department consisting of a number of engineers
and headed by a supervisory engineer. In support of his position,
complainant further argues that two white males were placed in Deputy
Site Manager (GS-13) positions without a qualifying engineering bachelor's
degree and professional engineer's license.
The agency indicates that complainant previously filed a complaint January
7, 1997, challenging the agency's decision to temporarily promote Employee
B to the Site Manager position at Yorktown. The agency dismissed the
complaint as untimely on the grounds that complainant did not file timely
file his complaint. The Commission vacated the agency's dismissal and
ordered the agency to conduct a supplemental investigation to determine
whether complainant was misled regarding the time frames and the method
of filing his formal complaint. Bond v. Navy, EEOC Appeal No. 01973203
(October 9, 1997). The agency submits that its revised FAD dismissed
the complaint, and the matter became final, when complainant did not
appeal. We agree that, under the circumstances, it would be improper
to relitigate the matter in this proceeding.
The Commission's Policy Against Fragmentation of Claims
Complainant's second allegation argues that the agency maintained, on a
continuous basis, a policy of racial discrimination designed to prevent
him from attaining GS/GM-14 level positions by utilizing subjective
selection considerations, imposing requirements designed to ensure the
selection of white employees for temporary promotions, thereby allowing
white employees to gain necessary experience for filling the positions
on a permanent basis, mentoring white employees, and utilizing the
Management and Superintendent Development Programs. Essentially, under
the Commission's policy of avoiding fragmentation of EEO complaints,
this allegation is relevant to the agency's failure to promote him to
GS/GM-14 level positions. See EEOC - Management Directive (MD) 110 at 5-7
(Example 3) (December 9, 1999). Accordingly, for the sake of clarity,
the Commission is treating complainant's concerns about the mentoring
of white employees, etc., as relevant in supporting his allegations of
the agency's failure to promote him for GS/GM-14 level positions, and
not as separate and independent claims. We also construe complainant's
arguments involving the Supply Management Officer, GS-20003-13, position
to be in support of his claims involving the attainment of GS/GM-14
level positions, and not a separate and independent claim.
Merits of Complainant's Claims
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). A complainant must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited reason was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action(s). Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has offered
the reason for its action, the burden returns to the complainant to
demonstrate, by a preponderance of the evidence, that the agency's reason
was pretextual, that is, it was not the true reason or the action was
influenced by legally impermissible criteria. Burdine, 450 U.S. at 253;
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
In order to establish a prima facie case of discrimination, complainant
may show that he is a member of a protected group and that he was
treated less favorably than other similarly situated employees outside
her protected group. See Potter v. Goodwill Industries of Cleveland,
518 F.2d 864, 865 (6th Cir. 1975). Complainant may also set forth
evidence of acts from which, if otherwise unexplained, an inference of
discrimination can be drawn. Furnco, 438 U.S. at 576.
The established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
Supply Management Officer, GS-2003-14.
Even assuming arguendo that complainant has established a prima
facie case, the agency has articulated a legitimate, nondiscriminatory
reason for its failure to promote and select complainant for the Supply
Management Officer, GS-2003-14 position, i.e., that complainant was not
qualified for the job.
We first address the issue of whether the posted qualifications
were valid, especially those cited in support of the conclusion that
complainant was unqualified for the position. Complainant conceded that
it would be critical to have knowledge of DBOF in any Supply Management
Officer position. Tr. 54. Indeed, complainant did not dispute that
it would be a critical element of the position. Id. With respect
to the requirement for contracting experience, complainant argues that
the position advertised in 1997 did not functionally (as distinguished
from formally) require contracting experience, because when Employee
A occupied the position on a temporary detail in 1987-88, Employee A
had no contracting experience. At the outset, Employee A was detailed
to a GS-2003-13 position, as compared to the GS-2003-14 position,
which complainant applied for. Moreover, while Employee A did not have
government contract experience, when he entered the detailed position,
he had contract experience during the course of a home services business
he had from 1978 to 1979. Additionally, Employee A was not selected
for the position in dispute, although it appears that Employee A did not
apply for the position. It does not appear that complainant addresses or
contests the validity of any of the other aspects of the qualifications
standards, which led to his ineligibility.
The agency also explained that the position qualification standards
have required updating to reflect changed duties, responsibilities, and
experience requirements that have occurred with respect to the position.
The agency thus indicated that the GS-2003-13 position description has
been changed at least twice since the time of Employee A's detail and the
GS-2003-14 has also been changed since the time of Employee A's detail.
Complainant has adduced no persuasive evidence tending to prove that the
agency's explanation was a pretext designed to conceal discriminatory
animus. In any case, changes in position requirements, over a period
of time exceeding ten years, are not necessarily indicative of pretext.
Transportation General Manager, GM-1601-14.
Complainant also appears to argue that he was unlawfully deprived of the
opportunity for promotion to Transportation General Manager, GM-1601-14.
The agency indicated that Employee A was detailed as Transportation
Superintendent position, GM-1601-13, which became permanent on February
17, 1991, and led to his promotion to Transportation General Manager
on May 31, 1992. Complainant points out that he was not detailed to the
Transportation Department, since he was involuntarily reassigned from
the Department in 1985, and that there were three other white males who
did not meet the one year specialized experience requirement, who had
been promoted to or voluntarily reassigned to the Department, including
Employee A.
The agency argues that this claim is without merit, because
complainant did not apply for the position. Generally, an allegation
of discriminatory non-selection fails to state a claim where the
complainant failed to apply for the position. See Owen v. Social Security
Administration, EEOC Request No. 05950865 (December 11, 1997).
However, complainant has essentially suggested that it would have
been futile to apply because the agency maintained, on a continuous
basis, a policy of racial discrimination designed to prevent him from
attaining GS/GM-14 level positions by utilizing subjective selection
considerations, imposing requirements designed to ensure the selection
of white employees for temporary promotions thereby allowing white
employees to gain necessary experience for filling the positions on a
permanent basis, mentoring white employees, and utilizing the Management
and Superintendent Development Programs.
In International Brotherhood of Teamsters v. United States, 431 U.S. 324,
363-368 (1977), the Supreme Court held that a class of minority bus
drivers who had not applied for more favorable positions from their
employer could nonetheless recover for the employer's discriminatory
seniority and promotion policies under Title VII, because submitting
an application under those policies would have been futile. �When a
person's desire for a job is not translated into a formal application
solely because of his unwillingness to engage in a futile gesture,� the
Court reasoned, �he is as much a victim of discrimination as is he who
goes through the motions of submitting an application.� Id. at 365-66.
The Court therefore permitted each bus driver, on remand, to undertake
�the not always easy burden of proving that he would have applied for
the job had it not been for [discriminatory] practices.� Id. at 368.
The Teamsters �futile gesture� doctrine has subsequently been applied
in other areas of employment discrimination law. See, e.g., Malarkey
v. Texaco, Inc., 983 F.2d 1204, 1213 (2d Cir. 1993) (applying �futile
gesture� doctrine to ADEA claim); Davoll v. Webb, 194 F.3d 1116 (10th
Cir. 1999) (applying �futile gesture� doctrine to Americans with
Disabilities Act claim).
We decline to invoke the �futile gesture� doctrine, in part, because
we conclude that complainant has not met his burden of persuasion
that the agency was engaging in a systemic continuing violation
of discriminating against black employees, including promotions to
GS/GM-14. From complainant's appeal, it appears that he only applied
once for promotion to GS-14. Indeed, the agency temporarily promoted
complainant to Norfolk Maintenance Head, GS-1601-14, from July 26,
1992, to October 24, 1992. It is also undisputed that from 1987 to
1997 the agency at Norfolk temporarily promoted six individuals to
GS/GM-14 positions. Of these individuals, four were Caucasian and two
were Black. In addition, from fiscal years 1987 to 1996, the agency at
Norfolk graduated 20 employees from the Public Works Management Program,
including 14 Caucasians, 3 Blacks, 1 Asian, and 2 of unknown race.
Indeed, on August 27, 1990, complainant graduated from the Program.
Appellant has not established the existence of a mentoring program for
Caucasian employees. The agency's Norfolk Executive Officer testified
that there is no formal or informal mentoring program. Tr. 81-83, 89-90.
Both Employees A and B disavowed any knowledge of, or participation in,
a formal or informal mentoring program. Tr. 142-43, 148. Complainant
gives no applicant flow data involving promotions or anecdotal evidence
from aggrieved employees. There is no evidence of the extent to which
complainant requested details and other training, and the agency's
responses, compared to other employees. Additionally, there is no
evidence that the agency actively discouraged or deterred complainant
or any other individual from applying for promotions or details, or
that the application process was secretive. See Ozinga v. Department
of Veterans Affairs, EEOC Request No. 05910416 (May 13, 1991).
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final agency
decision dated August 12, 1999.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
January 5, 2001
Date
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The agency indicated that Employee A was detailed as Transportation
Superintendent position, GM-1601-13, which became permanent on February
17, 1991, and led to his promotion to Transportation General Manager,
GM-1601-14, on May 31, 1992.
3 It is unclear what GS/GM level complainant was at when he was
reassigned. In one paragraph, in his appeal, he indicates that he
was reassigned as a Supervisory Maintenance Project Coordinator,
GM-1601-13. In the next paragraph, he states that he was reassigned
from Transportation Superintendent GS-1601-12 to Supervisory Maintenance
Project Coordinator, GS-1601-12. The agency, however, indicates that
complainant was promoted to Maintenance Superintendent GS-1601-13 on
September 3, 1987.
4 Employee B also was selected on February 7, 1997, for another temporary
promotion as Site Manager at Yorktown, effective February 16, 1997,
not to exceed February 15, 1998.