0120090307
02-04-2011
Michael M. Robinson, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Michael M. Robinson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120090307
Agency No. ARDUGWAY07JAN00051
DECISION
On October 14, 2008, Complainant filed an appeal from the Agency's
September 9, 2008, final decision concerning his equal employment
opportunity (EEO) complaint alleging 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 Equal Pay Act of 1963,
as amended, 29 U.S.C. � 206(d) et seq. The Commission accepts the
appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issue presented is Complainant has established that he was subjected
to discrimination based on sex, religion, and retaliation, as set forth
below.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Environmental Protection Specialist, GS-12, at the Agency's West
Desert Test Center (WDTC) Environmental Technology Office (ETO), Dugway,
Utah Proving Ground. Complainant was under the direct supervision of
the Supervisory Physical Scientist (S1). His second-line supervisor (S2)
was the Commander of the facility, who reported to the Commander of the
Dugway Proving Ground (S3), responsible for the entire installation.
S1 had been Complainant's second-line supervisor but became his first-line
supervisor by default on or about September 29, 2006, when Complainant's
former supervisor, the Chief, ETO and Environmental Research Coordinator,
GS-13 (Chief) left the agency to pursue another opportunity. The Chief
stated that because she had automated many of ETO's processes, she
informed S1 before leaving that only two individuals were needed to
perform the office's workload. Report of Investigation (ROI), at 258.
The ETO had been a three-person office until the Chief's departure,
when it became staffed by just Complainant and a contract employee.
After the Chief's departure, Complainant was informed by the S1 that
Complainant would serve as the leader of the ETO group. S3 subsequently
informed Complainant that Complainant was in charge of the office
until a decision was made whether to replace the Chief. Fact Finding
Conference Transcript (Transcript) 320:23-25. S3 also told Complainant
that he was going to move the Integrated Training and Management (ITAM)
functions to Fort Garrison so that Complainant could more easily do his
job, and because it was an operations rather than research function.
Id. at 321:2-10. S3 stated that the ITAM program was moved to WDTC
during the Chief's tenure because it was a program she had managed at
Fort Garrison before moving over to ETO.
On December 21, 2006, Complainant told S1 that he believed he was
performing the duties of the former chief as well as his current duties,
and therefore deserved to be paid at the GS-13 level. S1 requested
that Complainant provide him a list of his current duties, which
Complainant provided on January 3, 2007. S1 gave the information to the
Administrative Officer (AO) who worked in WDTC's Operations Division.
The AO drafted an outline for a non-supervisory Environmental Research
Coordinator job description. Id. at 291:18-23. Once S1 and the AO
worked out the final version of the job description, the AO submitted a
"no true vacancy promotion" request for personnel action (RPA) to S2.
On February 9, 2007, S2 approved the request and forwarded it to S3
for consideration. EEO Counselor's Report, Section XI.
S3 asked the AO to cancel the action, redo the job description, and
then open the GS-13 position to the widest recruitment area possible.
On February 21, 2007, S3's Staff Action Specialist contacted the AO and
asked her to hold the action until further notice because S3 had not yet
decided to backfill the Chief's position.2 Id. at 293:1-18. S3 later
decided that the position would not be backfilled. Id. at 334:10-16.
When S3 placed the RPA hold, S1 and S2 requested a desk audit of
Complainant's present duties to determine whether he should be upgraded
to a GS-13 for the work he was currently performing. S3 stated that
he agreed to the audit because he wanted to be sure Complainant was
appropriately paid for his work. Complainant stated that the desk audit
was bogus because he and the AO had worked out a position description
that qualified as a GS-13.
When the Human Resources Officer (HRO) received the audit request,
she forwarded it to a higher-level Agency personnel office for advice
from a ratings expert (Rater). The Rater indicated to the HRO that
Complainant's present duties did not justify promotion to the GS-13.
The Rater also told the HRO that Complainant did not meet the Office of
Personnel Management's (OPM) requirement for a GS-13 in the 0401 series
because he did not have a bachelor's degree in biology, natural sciences,
or similar discipline.
The Rater informed the HRO that if Complainant's position description was
changed to reflect his new duties, it could possibly grade out at a GS-11.
It was decided that it would be best to keep Complainant working under his
old position description, which kept him at the GS-12 level, rather than
alter his position description and risk having him downgraded to a GS-11.
On or about May 29, 2007, S1 informed Complainant that the WTDC was
being reorganized, and that Complainant would no longer report to him.
In response, Complainant contacted the Union President, who showed
Complainant a copy of the reorganization chart. The chart indicated
that Complainant's position would be moved to the Operations Division,
and that he would report to the Director of Operations. ROI at 14.
S3 stated that he decided to reorganize the facility because he believed
that the ETO only needed one employee.3 Transcript. at 330:1-6.
He further stated that the environmental operations were handled by
"the Garrison side of the Army" and that the only reason he had test
center employees working on environmental issues was because it was
required by Agency policy. He clarified that, although Agency policy
required the test center to have an environmental component, it did not
specify how much manpower to devote to it. S3 stated that there were
26 persons who worked on environmental issues in Fort Garrison and that
those people could back up Complainant when necessary to deal with any
environmental concerns. Id. at 321:11-21.
On March 1, 2007, Complainant filed a formal EEO complaint in which he
alleged discrimination on the basis of sex (male), age (57), and reprisal
(prior EEO activity) when he was not promoted to the GS-13 level.
He amended his complaint on or about June 6, 2007, in response to
the proposed reorganization. Complainant again amended his complaint
on August 28, 2007, in which he added the basis of religion (Mormon)
and indicated that the Agency's action subjected him to a hostile work
environment.
The Agency investigated Complainant's claims and upon completion provided
Complainant a copy of the ROI and notified him of his right to request
either a hearing before an EEOC Administrative Judge (AJ) or a final
agency decision. Upon complainant's request, the Agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded
that Complainant failed to prove he was discriminated against as alleged.
Complainant filed this appeal.
CONTENTIONS ON APPEAL
Both the Complainant and the Agency provided statements in support of
their appeal, which we decline to address separately because they simply
restate the parties' pre-appeal positions, and are inherently addressed
in the analysis and findings below.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
� VI.A. (November 9, 1999) (explaining that the de novo standard of review
"requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker," and
that EEOC "review the documents, statements, and testimony of record,
including any timely and relevant submissions of the parties, and
. . . issue its decision based on the Commission's own assessment of
the record and its interpretation of the law").
ANALYSIS AND FINDINGS
A. TITLE VII
1. Disparate Treatment
At the outset we note that Complainant alleges two incidents of
discrimination; first, that he was denied an opportunity to move into a
GS-13 position either through accretion of duties or by promotion and,
second, that the proposed Agency reorganization essentially blocked his
career path to a GS-13. The essence of both allegations is essentially
that he was denied a promotion to the GS-13 level.
Claims of discrimination in disparate treatment cases are generally
examined under the tripartite analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973), Hochstadt v. Worcester
Foundation for Experimental Biology Inc., 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases). For Complainant to prevail, he 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 consideration 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). Once complainant has
established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the Agency is successful, the burden reverts to Complainant
to demonstrate by preponderant evidence that the Agency's reason(s) for
its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by
a preponderance of the evidence that the Agency acted on the basis of a
prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
715-716 (1983). here, we may assume, for the sake of argument, that
Complainant has established a prima facie case of sex, religion, and
reprisal discrimination.
The burden now shifts to the Agency to articulate legitimate,
non-discriminatory explanations for its actions. The Agency stated that
Complainant was not promoted to the GS-0401-13 level because he did not
have the education required by OPM regulations. The Agency stated that
Complainant was not placed in a GS-0028-13 position through an accretion
of duties because there was not enough work in the ETO office to support
such an upgrade in pay. We note that the ITAM was removed from the ETO
upon the Chief's departure. We also note that the record indicates that
many of ETO's processes had been automated by the Chief, which obviated
the need for some of the work which had been done by ETO staff. S3 stated
that the decision to reorganize the ETO was based on his belief that Fort
Garrison could handle most of the environment issues as it had a staff of
26 persons who job was to handle the Command's environment obligations.
We find that the Agency's stated reasons qualify as legitimate and
nondiscriminatory.
Now the burden shifts to Complainant who must show that the Agency's
reasons are not true and is a pretext for discrimination. Complainant
offered evidence showing that the ETO office had been staffed with one
person before, and that the person running the office during those times
was always employed at the GS-0401-13 level. However, this does not
address the fact that, under OPM regulations, Complainant was not eligible
for a position at the GS-13 level in the 0401 series because he did not
have a bachelor's degree in biology, natural science, or a related field.
Complainant's bachelor's degree was in English (technical writing).
It also does not address the Agency's explanation that once the Chief
automated the office's processes, there simply was not as much work to
perform.
The AO stated she believed Complainant was discriminated against on the
basis of reprisal because in late April 2007, S1 told her not to inform
Complainant of any personnel matter, and when her (the AO's) supervisor
asked him why, S1 responded that it was because Complainant was covered
by the bargaining unit. Transcript at 296:21-25, 297:1-13. The AO
also stated that she could not say for certain that this statement was
based on Complainant's EEO complaint but that was her opinion because
Complainant has a right to have his personnel questions answered.
We find that this evidence insufficient to establish pretext.
Complainant has failed to produce any other evidence showing that the
Agency's actions were based on unlawful discrimination. Therefore,
we find that he has failed to prove he was subjected to discrimination
under Title VII.
2. Harassment/Hostile Work Environment
Complainant alleged that the Agency's actions resulted in a hostile
work environment. In determining whether an objectively hostile or
abusive work environment existed, the fact finder should consider
whether a reasonable person in the complainant's circumstances would
have found the alleged behavior to be hostile or abusive. Even if
harassing conduct produces no tangible effects, such as psychological
injury, a complainant may assert a Title VII cause of action if the
discriminatory conduct was so severe or pervasive that it created a work
environment abusive to employees because of their race, gender, religion,
or national origin. Rideout v. Dept. of the Army, EEOC Appeal No. 01933866
(Nov. 22, 1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17,
22 (1993)) req. for recon. den'd, EEOC Request No. 05970995 (May 20,
1999). Also, the fact finder must consider all of the circumstances,
including the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23. Upon review of the record, we
find that the events of which Complainant complained, even when taken
as a whole, were not sufficiently severe or pervasive enough to rise
to the level of actionable harassment. Further, because we have found
that the Complainant has not established that the actions of which he
complaints were motivated by discriminatory animus, we would in any
event be precluded from finding discriminatory harassment.
II. EQUAL PAY ACT
Complainant contends that the Agency's refusal to promote him to the GS-13
is a violation of the Equal Pay Act. The U.S. Supreme Court articulated
the requirements for establishing a prima facie case of discrimination
under the EPA in Corning Glass Works v. Brennan, 417 U.S. 188, 195
(1974). To establish a violation of the EPA, a complainant must show
that he or she received less pay than an individual of the opposite
sex for equal work, requiring equal skill, effort and responsibility,
under similar working conditions within the same establishment. Id. at
195; Sheppard v. Equal Employment Opportunity Commission, EEOC Appeal
No. 01A02919 (September 12, 2000); see also 29 C.F.R. � 1620.14(a).
Once a complainant has met the burden of establishing a prima facie
case, an employer may avoid liability only if it can prove that the pay
difference is justified under one of the four affirmative defenses set
forth in the EPA, namely: (1) a seniority system; (2) a merit system;
(3) a system which measures earnings by quantity or quality of production
of work (also referred to an incentive or piecework system); or (4)
a differential based on any other factor other than sex, 29 U.S.C. �
206(d)(1); Corning Glass Works, 417 U.S. at 196-97; Kouba v. Allstate
Insurance Co., 691 F.2d 873 (9th Cir. 1982). The requirement of "equal
work" does not mean that the jobs must be identical, but only that
they must be "substantially equal." Id. (citing Corning Glass Works,
417 U.S. at 203, n. 24; Homer v. Mary Institute, 613 F.2d 706, 714
(8th Cir. 1980); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 449
(D.C. Cir. 1976)).
Complainant contended he received less pay than the Chief, a female
employee, for doing equal work requiring the same skill, effort and
responsibility. However, he admitted that he did not oversee the
ITAM program or prepare its budget as the Chief had done. The ITAM
program involved examining wildlife as it entered the training area,
and assessing the impact training had on wildlife and soil compaction.
Id. at 344:5-24. Because Complainant did not perform these duties, we
are not persuaded that he performed equal work under similar conditions
when compared to the Chief, and therefore find that he failed to prove
a violation of the Equal Pay Act.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
Complainant has failed to prove he was discriminated against, and hereby
AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 4, 2011
Date
1 On appeal, Complainant dropped his claim of discrimination based on
age.
2 The AO retired on May 31, 2007, without having received guidance on
how to proceed with the promotion request.
3 The other employee stationed in the ETO worked pursuant to a contract
set to expire on July 2, 2007.
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0120090307
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090307