01A12182
06-19-2002
Thaddeus E. Waterbury, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Thaddeus E. Waterbury v. Department of Agriculture
01A12182
June 19, 2002
.
Thaddeus E. Waterbury,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A12182
Agency No. 980922
DECISION
Complainant timely initiated an appeal from a final agency decision
(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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Contract Specialist, GS-1102-11 at the agency's Forest Service,
Southern Sierra Province in Sonoma, California. Complainant sought EEO
counseling and subsequently filed a formal complaint on August 28, 1998,
alleging that he was discriminated against on the bases of his sex, race
(White), and age (date of birth: March 15, 1943) when the agency denied
his request to be upgraded to Contracting Officer, GS-1102-12.
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. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of discrimination based on sex, but failed to establish a
prima facie case of age or race discrimination. The FAD proceeded to
find that the agency articulated legitimate, nondiscriminatory reasons
for its action. Specifically, complainant's supervisor (S1) states that
the denial of upgrade was because complainant requested to be upgraded
to a position that does not exist. Additionally, the approved
organizational plan did not allow for an additional GS-12, and the
workload did not dictate an additional position. The FAD further
found that complainant failed to establish that the agency's reasons
were pretextual.
On appeal, complainant contends that the agency ignored facts presented by
him which indicate that the agency's reasons are pretextual. Complainant
explains that there are no similarly situated Contracting Officers,
and that he is one of only two GS-1102-11 journey level Contracting
Officers in Region 5, which is all of California. Complainant states
that S1's discriminatory animus toward him is evidenced by the fact that
S1's reasons for denying the upgrade are unsubstantiated. For instance,
the workload did, in spite of S1's assertions to the contrary, justify an
additional GS-12 Contracting Officer. Complainant also responds to S1's
statements that another GS-12 position is not in the organizational plan,
by pointing out that the plan is flexible, and other positions have been
created that were inconsistent with the plan. Complainant additionally
asserts that simply because S1 supervises three females over age 40
(as noted in the FAD) does not mean S1 is incapable of discrimination.
The agency requests that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD
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). Under the ADEA, it is "unlawful for an employer
... to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's age." 29 U.S.C. � 623(a)(1). When a complainant
alleges that he or she has been disparately treated by the employing
agency as a result of unlawful age discrimination, "liability depends
on whether the protected trait (under the ADEA, age) actually motivated
the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,
610 (1993)). "That is, [complainant's] age must have actually played a
role in the employer's decisionmaking process and had a determinative
influence on the outcome." Id.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case of
discrimination on the bases of sex, race and age, we turn to the agency
to articulate a legitimate, nondiscriminatory reason for its action.
S1 states that complainant was qualified for a GS-12 position, however he
denied complainant's request for upgrade because there was no GS-1102-12
vacancy. (Record of Investigation (ROI), Exhibit 9, p. 3). In addition,
S1 states that the �ideal stage� of the EAO Implementation Plan<1> did not
include another GS-12 Contracting Officer position. Id. S1 additionally
states that �the workload did not dictate an additional position.� Id.
We now turn to complainant to establish that the agency's reasons are
pretext for discrimination. Complainant argues that S1's reasons
are untrue, which leads him to believe that he was subjected to
discrimination. Complainant also contends that, as to him, the agency
is not acknowledging the Washington, DC directive (dated December 31,
1997) on GS grades for journey level Contracting Officers because of
management's animus toward his protected classes. Complainant explains
that the directive states that journey level Contracting Officers should
be at the GS-12 level for Contracting Specialists handling contracts that
exceed $100,000, and he had been handling contracts up to $250,000.<2>
After a review of the evidence presented by complainant, we are not
persuaded by a preponderance of the evidence, that the agency's reasons
are pretext for discrimination on the alleged bases. In so finding,
we note that noncompliance with internal agency procedures does not, by
itself, establish that the agency intentionally discriminated. We have no
authority to enforce the agency's own internal procedures where, as here,
there is no evidence from which we can infer that the agency's departure
from its procedures was motivated by race, age and/or sex discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
June 19, 2002
__________________
Date
1 The record reveals that this plan is also known as the Southern Sierra
Province Micro Design. It identifies how the Southern Sierra Province
should be structured during the startup (February 1996) through the
�ideal organization� (January 1999).
2 The record indicates that a Contracting Officer is linked with,
but not the same as, a Contracting Specialist. A Contracting Officer
is a Contracting Specialist in the GS-1102 series who has contracting
authority to administer service, supply and construction contracts.