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.