Willard C. Losinger, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionJan 10, 2005
01A44292_r (E.E.O.C. Jan. 10, 2005)

01A44292_r

01-10-2005

Willard C. Losinger, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Willard C. Losinger v. Department of Agriculture

01A44292

January 10, 2005

.

Willard C. Losinger,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A44292

Agency No. 010099

DECISION

Complainant initiated an appeal from a final decision 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. 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 Mathematical Statistician, GS-1529-12, at the agency's Animal and

Plant Health Inspection Service (APHIS), Fort Collins, Colorado facility.

Complainant sought EEO counseling and subsequently filed a formal

complaint on September 26, 2000, alleging that he was discriminated

against on the basis of reprisal for prior EEO activity when:

(1) In 1999, the agency prolonged the process of rewriting complainant's

job description; and

In 1999, the agency failed to upgrade his position to the GS-13 grade

level.<1>

In its decision, the agency states that at the conclusion of the

investigation in May 2002, 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. When complainant failed to

respond within the time period specified in 29 C.F.R. � 1614.108(f),

the agency issued a final decision.

In its September 11, 2004 decision, the agency concluded that complainant

had failed to establish a prima facie case of reprisal discrimination

with respect to claim (1) because complainant failed to show that he

was subjected to any adverse personnel action in connection with the

alleged delay encountered in the rewriting of complainant's position

description. On the contrary, the agency found the evidence showed

the agency did not delay in acting on complainant's request to upgrade

his position and promptly advised him of the actions he needed to take

to pursue his desire for a desk audit and possible reclassification of

his position to a higher grade.

Regarding the failure of the agency to upgrade complainant's position, the

agency found that complainant established a prima facie case of reprisal

discrimination, but failed to show that the agency's explanation for its

actions were a pretext to mask unlawful discrimination. Specifically, the

agency found complainant failed to show any discriminatory motive on the

part of the agency officials involved with the review and classification

of complainant's position, which resulted in a denial of complainant's

request for an upgrade.

On appeal, complainant contends that his supervisor deliberately

mis-characterized the description of complainant's work and omitted

changes to his position description which complainant suggested before

the rewritten position description was submitted to the position

classification specialist for review.

Although the Commission finds that complainant properly established a

prima facie case of reprisal discrimination, we also find that complainant

failed to present evidence that more likely than not, the agency's

articulated reasons for its actions were a pretext for discrimination.

In reaching this conclusion, we note that complainant has not shown

that the length of time required by complainant's supervisor to consider

complainant's comments and changes to complainant's position description

was unreasonable. Significantly, we find no evidence in the record to

show that the changes to complainant's position description suggested by

complainant (and not incorporated into the version submitted for review)

would have resulted in an upgrade to complainant's position. Similarly,

complainant has not shown that discrimination motivated the position

classification specialist's decision to maintain the current title,

series and grade applicable to complainant's position as a GS-1529-12

Mathematical Statistician.

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 agency's

final decision, finding no discrimination.

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

January 10, 2005

__________________

Date

1We have edited the claims identified by the agency to add the year

during which the incidents occurred.