05A10233
04-23-2001
Kathleen Gotto, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Kathleen Gotto v. Department of the Air Force
05A10233
April 23, 2001
.
Kathleen Gotto,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Request No. 05A10233
Appeal No. 01993938
Agency No. EP1598010
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Kathleen
Gotto v. Department of the Air Force, EEOC Appeal No. 01993938
(January 11, 2001). EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
BACKGROUND
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.<1> Complainant alleged that she
was discriminated against based on sex (female), when she was reassigned
from a Procurement Analyst, GS-1102-12, position to a Contract Specialist,
GS-1102-12, position. The Commission affirmed the FAD.
The record reveals that during the relevant time, complainant was employed
as a Procurement Analyst in the 50th Contracting Squadron at Schriever
Air Force Base in Colorado. On December 17, 1997, Supervisor C (male),
her first-level supervisor, informed her that she was being reassigned
to a Contract Specialist position in the Operations and Maintenance
Services Flight, effective January 18, 1998. According to the agency,
Supervisors A (male, third-line supervisor), B (female, second-line
supervisor), C, and D (male) decided by consensus to reassign complainant
to the Contract Specialist position. Employee C (male), a procurement
specialist, was reassigned to the Procurement Analyst position, upon
complainant's reassignment.
During this time period, Employee A (male) was asked whether he would
accept an assignment to a supervisory contract specialist GS-12 position.
When Employee A declined, Employee B (male) was asked whether he would
accept the assignment. When Employee B, a contract specialist, accepted
the assignment, complainant was appointed to fill his vacated position,
although she did not want the position.
In its FAD, the agency assumed that complainant had established
a prima facie case. The agency, however, articulated a legitmate,
nondiscriminatory reason for its action, i.e., the needs and demands of
the organization. The FAD then found that complainant failed to show
that the articulated, legitimate, nondiscriminatory reason for its action
was pretext. The FAD concluded that the agency did not discriminate
against complainant based on sex.
On appeal, complainant argued that Employee C (who took over complainant's
position as a procurement analyst) had recent contracting experience, and
that as a Procurement Analyst, Employee C held a $1 million contracting
warrant as a contracting officer, in addition to functioning as a
Procurement Analyst for the Headquarters Air Force Space Command, and had
worked on $180 million and $280 million contracts. On the other hand,
complainant argued that she had not been a Contract Specialist since
the fall of 1994, and thus, in her view, did not have recent contract
experience. Accordingly, complainant suggested that the agency's
articulated nondiscriminatory reason was false. Complainant further
argued that Employee A (male) was given the opportunity to accept
or reject reassignment to a supervisory contract specialist position.
Finally, complainant emphasized that in her 4-1/2 years at Schriever Air
Force Base, she had never before seen a situation where an individual was
forced out of his or her position to fill another vacancy in the office.
In addressing complainant's appeal, the Commission found that the
agency articulated a legitimate, nondiscriminatory reason for her
reassignment, i.e., the needs and demands of the organization. It was
thus pointed out that it was the complainant's burden to establish by the
preponderance of the evidence (more likely than not), that the agency's
articulated nondiscriminatory explanation for its action was a pretext
for discrimination. In the Commission's view, complainant failed to
meet her burden to show that the agency's articulated nondiscriminatory
explanation was pretext.
On reconsideration, complainant reiterates the arguments she made on
appeal and indicates that the previous decision erred in finding that
Employee A had a $1 million contracting warrant, when, in fact, it
was Employee C, who had the warrant. In addition, she argues that the
Commission erred in suggesting that her reassignment was a natural course
of events. She thus emphasizes that her reassignment was involuntary,
and that it was highly questionable whether her reassignment, as
a contracting officer, was of such importance to the organization.
In contrast, she notes that Employees A, B, and C, all males, were
given common courtesy by the agency and treated fairly by giving
them a say in their reassignments. Complainant further argues that
Supervisor A was not credible to the extent he stated that complainant
had more recent contracting experience and yet he was purportedly not
aware of Employee C's contracting officer responsibilities. Moreover,
complainant stresses the importance of a contracting officer as the
lifeblood of the organization. She reiterates that given Employee C's
contracting background it should have been self-evident why he should
have been assigned to the Contract Specialist position, instead of the
procurement position. Finally, complainant questions the relevance
of animus against complainant or any other person on the basis of sex
(female) by the agency at complainant's location, and that her female,
second-level supervisor, who supported the reassignment was not going
to disagree with the commander, third-level supervisor.
The agency responded in opposition, essentially arguing that complainant
did not articulate sufficient grounds for reconsideration, i.e., the
previous decision did not involve a clearly erroneous interpretation
of material fact or law or have a substantial impact on the policies,
practices, or operations of the agency. The agency also indicates that
complainant is merely rearguing her case as a second appeal. In the
agency's view, the previous decision's finding that Employee A (instead
of Employee C) held a $1 million contracting warrant as a contracting
officer was a typographical error, and, in any event, was harmless error.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. � 1614.405(b) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that
the Commission's scope of review on a request to reconsider is limited.
Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September
28, 1989).
Although the initial inquiry of discrimination 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 this case,
even assuming, arguendo, that complainant has established a prima facie
case, we find that she, nevertheless, has failed to prove discrimination.
The Commission can not second guess an employer's business decisions
but can focus only on an employer's motivation for such decisions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). An employer has the discretion to determine how best to manage
its operations and may make decisions on any basis except a basis that
is unlawful under the discrimination statutes. Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978); Nix v. WLCY Radio/Rayhall
Communications, 738 F.2d 1181 (11th Cir. 1984). In addition, an employer
is entitled to make his own business judgments. The reasonableness
of the employer's decision may of course be probative of whether it is
pretext. The trier of fact must understand that the focus is to be on
the employer's motivation, not its business judgment. Loeb v. Textron,
Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). Moreover, it must be
emphasized that a request for reconsideration is not a second appeal.
Complainant has not sufficiently explained how the agency's assignment
of Employee C to the Procurement Analyst position instead of the Contract
Specialist position was motivated by sex discrimination. Employee C was
already serving in a procurement specialist position. Although Employee
C's contract officer credentials may have been excellent, including having
a $1 million contracting warrant, his assignment to the Procurement
Analyst position was evidently a higher priority in the context of the
agency's needs at the time. Complainant nowhere argues that she was
not qualified for the Contract Specialist position or that Employee C
was not qualified for the Procurement Analyst position.
While complainant failed to see the relevance of animus against her or
other persons on the basis of sex (female) by the agency at complainant's
location, such evidence, especially of animus against her, could have
been helpful in showing that the agency's action was motivated by sex.
Moreover, from the evidence of record, it appears that complainant's
involuntary reassignment, with no loss in grade or pay, has been
the only negative action by the agency taken against complainant.
While complainant fails to see the appropriateness of Employees A and B
being given the opportunity to accept or reject the supervisory position
offered to them, the Commission concludes that such a course of action
is consistent with reasonable business judgment.
Finally, complainant asserts, without support, that her reassignment
was driven at the outset by Supervisor A, the third-line supervisor.
Supervisor B (female, second-line supervisor) indicated that the
reassignment action was a consensus decision, which she recommended.
Report of Investigation, Exhibit F-3 at 66-67. Only complainant suggests
that her reassignment action was not a consensus decision by Supervisors
A, B, C, and D.
CONCLUSION
After a review of the complainant's request for reconsideration,
the agency's response, the previous decision, and the entire record,
the Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 01993938 (January 11, 2001)
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
April 23, 2001
Date
1 Complainant did not request a hearing before an EEOC Administrative
Law Judge, but instead requested that the agency issue a FAD.