01a02734_01A13545
01-09-2002
Jerry Hofegartner, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Jerry Hofegartner v. Department of the Air Force
01A02734; 01A13545
01-09-02
.
Jerry Hofegartner,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal Nos. 01A02734; 01A13545
Agency Nos. 9V1M99225; 9V1M98455
Hearing No. 310-99-5607X
DECISION
INTRODUCTION
Complainant timely initiated appeals from two final agency decisions
concerning his formal complaints 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the reasons that follow, the final agency
decisions are AFFIRMED.
ISSUE PRESENTED
The issue presented herein is whether complainant has proven by
preponderant evidence that he was discriminated against on the basis
of sex (male) when his request for a shift arrangement was denied, and
on the basis of reprisal (prior Title VII EEO activity) when he was not
selected for the position of Electronics Mechanic.
BACKGROUND
Information in the evidentiary record reveals that in mid-August 1998,
complainant, employed by the agency as an Aircraft Electrician, was
notified that he would be reassigned to the swing shift, which commenced
at 3:30 p.m., later that month. Consequently, complainant requested
that he be allowed to report to work at 4:00 p.m. in order to pick up
his children from school. In lieu of this request, complainant wanted
to be excused from work thirty minutes per day during his assignment
to swing shift. Complainant's second line supervisor, the responsible
management official (RMO), denied the request for a daily excused absence.
In denying complainant's request, the RMO indicated that complainant
should talk to his first line supervisor concerning a daily thirty minute
adjustment (i.e., arrive to work thirty minutes late, but leave thirty
minutes late as well). Complainant's first line supervisor indicated
to complainant that his schedule could be adjusted, but that he could
not be excused for thirty minutes per day. According to complainant,
he did not understand the first line supervisor's offer to be the same
arrangement given to one of his female co-worker's, so complainant
declined the offer.<1>
On August 28, 1998, complainant contacted the agency's EEO office and
spoke with an EEO counselor. When the matter could not be resolved
at the counseling stage, complainant filed a formal EEO complaint,
which the agency accepted for investigation, on October 2, 1998.
At the conclusion of the investigation, complainant was informed of
his right to elect a hearing before an EEOC Administrative Judge (AJ),
or an immediate final decision from the agency. Complainant elected
the former. Consequently, the case was forwarded to the appropriate
EEOC District Office and assigned to an AJ.
Meanwhile, from January 1999 through March 1999, the RMO and one of
his counterparts were charged with filling eight Electronics Mechanic
positions. There was no formal application process for these selections.
Instead, candidates for the position were listed on a Merit Promotion
Certificate (MPC). A total of fifteen candidates, including complainant,
were listed on the MPC when it was first issued on January 22, 1999.
A total of seventeen candidates, including complainant, were listed
on the MPC when it was reissued on February 16, 1999. The RMO and his
counterpart made eight selections from the period of January 15, 1999 to
March 1, 1999. The RMO made six selections; his counterpart made two.
Complainant received a memorandum from the RMO indicating that he had
not been selected.
Believing he was the victim of discrimination regarding the non-selection,
complainant contacted an EEO counselor, and subsequently filed a formal
complaint. The agency accepted the complaint for investigation. At the
conclusion of the investigation, the agency informed complainant of his
right to elect a hearing before an AJ or, in the alternative, an immediate
final agency decision. When the complainant failed to make an election,
the agency issued an immediate final agency decision. The decision,
dated January 28, 2000, found no discrimination. On February 24,
2000, complainant filed an appeal, which was docketed as EEOC Appeal
No. 01A02734.
On October 24, 2000, the AJ, after determining that there were no material
facts in dispute regarding the schedule adjustment complaint, issued
a decision without a hearing finding no discrimination. Specifically,
the AJ found that complainant failed to make out a prima facie case of
discrimination because he failed to submit evidence that an employee
outside of his protected group was treated differently, and did not
submit any evidence to prove that the agency's stated reason was a
pretext for discrimination. The agency adopted the AJ's findings.
Complainant appealed. That appeal was docketed as EEOC Appeal
No. 01A13545. The Commission has opted to consolidate both appeals for
further administrative processing. See 29 C.F.R. � 1614.606.
ANALYSIS AND FINDINGS
Denial of Schedule Adjustment - Sex Discrimination
As a threshold matter, we note that the United States Supreme Court has
held that summary judgment is appropriate where a court determines that,
given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court does not sit as a fact finder. Id. The evidence
of the non-moving party must be believed at the summary judgment stage
and all justifiable inferences must be drawn in the non-moving party's
favor. Id. A disputed issue of fact is "genuine" if the evidence
is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver
v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. An AJ may only properly consider summary
judgment after there has been adequate opportunity for development of
the record. After examining the testimonies of the various witnesses and
other evidence provided by the parties, we find that the AJ's decision
to issue a ruling without a hearing was appropriate.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that the agency's action was motivated by
discriminatory animus toward complainant's sex. Therefore, we discern
no basis to disturb the AJ's decision regarding the schedule adjustment
denial.
Non-Selection - Reprisal Discrimination
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, 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 reprisal cases).
First, complainant must 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 consideration was a
factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802. Next, the agency must articulate a legitimate, nondiscriminatory
reason(s) for its actions. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful,
then the complainant must prove, by a preponderance of the evidence,
that the legitimate reason(s) proffered by the agency was a pretext
for discrimination. Id. at 256.
Although 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 when 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 reasons for its
actions merely were a pretext for discrimination. Id.; see also United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-717 (1983). Here, we find that the agency has stated legitimate,
nondiscriminatory reasons for its action. Specifically, the RMO stated
that during the selections process, he gave specific consideration
to education beyond high school, past performance ratings, awards
received, supervisors' recommendations, and training and/or experience on
sophisticated electronic systems. He stated further that complainant,
with no education beyond high school, a fully successful appraisal, no
awards and no supervisory recommendation, did not compare well with the
selectees in most of the areas to which he gave consideration. Finally,
the RMO noted that complainant's electrical experience was in the area of
aircraft wiring, not specific electronic systems. The RMO's counterpart,
the other selecting official, stated that his selections were based on
the candidates' background and experience on board the B-52 aircraft.
He stated further that his two selectees had such experience while
complainant did not.
Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory events, complainant now bears
the burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In attempting to meet this burden complainant contends that he is
better qualified than any of the selectees. In a non-selection case,
pretext may be demonstrated in a number of ways, including a showing
that complainant's qualifications are plainly superior to those of
the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Having considered the evidence of record, the Commission finds that
complainant has not demonstrated that his qualifications for the position
were "plainly superior" to those of the selectees.
Complainant also contends that he heard one of the supervisors under
the RMO state that complainant did not get the job because he was a
troublemaker. According to complainant, this statement was made by the
supervisor to one of complainant's co-workers. The supervisor admitted
making the statement, but indicated that it was made in the context
of a work problem. The supervisor stated that he had no knowledge of
complainant's prior EEO activity at the time the statement was made.
The co-worker to whom the statement was made provided a more detailed
version of the statement. Specifically, he stated that the comment
was made in the context of an argument between the supervisor and the
co-worker about an aircraft not being ready to fly. All three versions
of the �troublemaker� statement are consistent with the notion that the
supervisor's statement referred to complainant's work, and not his prior
EEO activity.
Complainant further contends that the RMO's contention that all of
the selectees were ranked above complainant on the rankings of the
candidates listed on the MPC is a pretext to mask unlawful discrimination.
Complainant believes that the RMO's contention constitutes pretext
because the RMO stated that the MPC rankings were based on experience,
last performance appraisal and awards, and education when in fact they
were based on service computation date (SCD) or seniority. A personnel
staffing specialist confirmed complainant's assertion that the MPC
rankings were based on the SCD of the selectees. Notwithstanding the fact
that the rankings were based on the SCD, an examination of the information
provided on the MPC reveals that the certificates did contain information
regarding the candidates education, and that the RMO and his counterpart
conducted record reviews of the candidates in order to supplement the
information contained on the MPC. So, while it is clear that the RMO
erroneously stated that the MPC rankings were based on factors such as
experience, last performance appraisals, awards, and education, it is
also clear that such factors were considered in the selections process.
For that reason, it is the Commission's view that the RMO's erroneous
contention was immaterial.
Finally, complainant contends that the RMO's statement that another
factor that played into his decision not to select complainant is
that none of the three supervisors under him recommended complainant
for selection constitutes pretext. Complainant maintained that this
statement constituted pretext because he was recommended by one of
the supervisors for selection. The Commission notes that the record
is not clear as to whether complainant was recommended by a supervisor.
In stating that complainant did not receive a supervisory recommendation,
the RMO named three supervisors, two of whom provided statements that
they did not recommend complainant. The agency failed to provide a
statement from the third supervisor. On appeal, complainant provided a
statement from an individual who stated that he recommended to the RMO
that complainant be selected. The individual named on the statement
provided by complainant is different than the third supervisor named by
the RMO. This statement does not indicate whether this individual is
a supervisor, although complainant contends that he is. Assuming this
individual is a supervisor, there is no indication that he worked under
the RMO; therefore, we are unable to ascertain whether the RMO sought
or relied upon recommendations from this individual. As such, we do
not find the statement persuasive.
For the foregoing reasons, the Commission finds that the arguments and
evidence presented by complainant to prove that the agency's stated
reasons were a pretext for discrimination fall short of doing so.
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response thereto, and evidence not specifically
addressed in this decision, the Commission AFFIRMS the agency's adoption
of the AJ's decision concerning the denial of complainant's adjusted
schedule request. The Commission also AFFIRMS the agency's final decision
concerning complainant's non-selection.
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
__01-09-02________________
Date
1Complainant believed that the female co-worker was allowed to be excused
from work thirty minutes per day to pick up her children from school.