01973637
03-12-1999
Terry Hightower, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Terry Hightower v. Department of the Air Force
01973637
March 12, 1999
Terry Hightower, )
Appellant, )
) Appeal No. 01973637
v. ) Agency No. SAC-95-AF-0184-E
) EEOC No. 380-96-8048X
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against him in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq., the Age Discrimination
in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. �621 et seq.,
and �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. The Commission accepts this appeal in accordance with EEOC
Order No. 960.001.
Appellant, a WG-10 Mason, filed a formal complaint of discrimination in
which he claimed discrimination on the bases of race (African-American),
age (DOB: 6/13/51) and physical disability (carpel tunnel syndrome).
After a careful review of the entire record, including the hearing
transcript and Investigative Report, we find the following accurately
defines the issues in the instant complaint. Specifically, appellant
alleged he was discriminated against on the aforementioned bases when:
(1) as a result of a Reduction in Force (RIF) which occurred in February
1995, he was deprived of upward mobility within his assigned organization;
(2) when, subsequent to the RIF, he was not placed in the position of WG-8
Cement Finisher (Engineering Equipment Operator), but rather was placed
in the WG-8 Motor Vehicle Operator position; and (3) on March 9, 1995, he
was not referred for promotion consideration to an Engineering Equipment
Operator, WS-5716-11 position. The agency accepted the complaint and
conducted an investigation. At the conclusion of the investigation,
appellant requested a hearing before an Equal Employment Opportunity
Commission administrative judge (AJ). A hearing was conducted on
September 9, 1996.
On December 4, 1996, the AJ issued a recommended decision (RD) finding
no discrimination. The AJ concluded that appellant failed to establish a
prima facie case on any bases. Additionally, the AJ found that the agency
had articulated legitimate, nondiscriminatory reasons for its actions,
for which appellant had failed to prove were pretext for discrimination.
Specifically, On February 28, 1995, appellant was offered, and accepted
the position of WG-8 Motor Vehicle Operator in lieu of separation.
The comparative (Caucasian), who had been working as a WG-10 Engineering
Equipment Operator, was offered the position of WG-8 Cement Finisher
(Engineering Equipment Operator).
In response to appellant's allegations, the EEO/Staffing Specialist
(Specialist) testified that the comparative, not appellant, was offered
the position of Cement Finisher in lieu of separation, because appellant
did not have a Commercial Driver's Licence, whereas the comparative did.
In her RD, the AJ found that prior to the RIF, management had decided to
waive certain qualifications of a job in order to prevent an individual
from being separated from the agency due to the RIF. For instance, in
order for appellant to qualify for the Motor Vehicle Operator position,
the agency, without knowledge as to who would ultimately occupy the
position, waived the requirement of experience with K-loader equipment
because it was a noncritical qualification. The Specialist testified that
she had asked management if the Commercial Driver's License requirement
could be waived, but it could not as it was critical to the position.
Meanwhile, unrelated to the RIF, a competitive merit promotion certificate
was announced for a WS-5716-11 Supervisory Engineering Equipment Operator
position. The comparative was referred, considered, and ultimately
selected on March 9, 1995, for this position. Although appellant produced
little, if any evidence, that he was qualified for this position, the
Specialist testified that appellant was not qualified for the position
because he did not have airfield clearing equipment operator experience,
whereas the comparative did. In sum, the AJ found that appellant failed
to produce sufficient evidence that the agency's reasons for its actions
were pretext for discrimination, and that appellant was not discriminated
against as alleged.
On February 25, 1997, the agency issued a final decision adopting
the AJ's finding of no discrimination. In its decision, the agency
found that appellant had failed to establish a prima facie case, and
that it had artilcuated legitimate, nondiscriminatory reasons for its
actions. Furthermore, it found that even if appellant had initially
been placed in the WG-8 Cement Finisher position following the RIF, his
qualifications for the WS-11 Supervisory Engineering Equipment Operator
position would not have been enhanced as he lacked significant airfield
clearing experience. Therefore, the agency denied that appellant had
been denied upward mobility or consideration for the WS-11 position,
rather he failed to meet the qualification standards for the position.
Specifically, appellant did not have sufficient experience with the
operation of airfield clearing equipment.
After a careful review of the record in its entirety, the Commission finds
that the AJ's Recommended Decision accurately analyzed the appropriate
regulations, policies and laws. We further find that the agency's final
decision accurately sets forth the relevant facts, and also analyzed the
appropriate regulations, policies and laws. We find no basis to overturn
the AJ's or agency's decisions. We note appellant has not raised any
contentions on appeal. Accordingly, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's finding of no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 12, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations