Benny Rosser, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionDec 8, 1999
01970650 (E.E.O.C. Dec. 8, 1999)

01970650

12-08-1999

Benny Rosser, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency.


Benny Rosser, )

Complainant, )

)

v. ) Appeal No. 01970650

) Agency No. 95-0337

Rodney E. Slater, )

Secretary, )

Department of Transportation )

(Federal Aviation Administration), )

Agency. )

)

DECISION

On October 29, 1996, Benny Rosser (hereinafter referred to as complainant)

filed a timely appeal from the September 27, 1996, final decision of the

Department of Transportation (hereinafter referred to as the agency)

concerning his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq.<1> The appeal is timely filed (see 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.402(a))) and is accepted in accordance with EEOC

Order No. 960, as amended. For the reasons that follow, the agency's

decision is AFFIRMED.

The issue presented in this appeal is whether the complainant has proven,

by a preponderance of the evidence, that the agency discriminated against

him on the basis of race (black) when his new position was not upgraded

in December 1994.

Complainant filed a formal complaint February 22, 1995. After an

investigation, complainant requested a final agency decision (FAD)

without a hearing. In its FAD, the agency found no discrimination,

and complainant has filed the instant appeal.

Pursuant to a reorganization, the Human Resources Management Division

(HRMD), Atlanta, Georgia, was collapsed into three branches, i.e.,

Personnel Services, Customer Relations, and Workforce Development.

Complainant, formerly a Supervisory Personnel Staffing and Classification

Specialist, GS-14, was assigned as Manager, Personnel Services Branch,

GS-14, with 25 employees. The managers of the other two branches were

also assigned as GS-14s; one was white, and one was black, and there

were 22 employees in Customer Relations and 11 in Workforce Development.

Complainant claimed that his new position had greatly enhanced

responsibilities that merited upgrade to GS-15. He claimed that the

Acting Manager of HRMD (S1) denied his position an upgrade for political

reasons, in that, S1 sought to fuel his candidacy as permanent Manager

of HRMD, GS-15. Complainant compared his position to the position of

Manager, Public and Government Affairs, encumbered by a white female,

which had originally been classified as GS-14, but was reclassified by

S1 to GS-15. Also, he stated that several white GS-15 employees did

not have supervisory responsibilities, e.g., a Program Manager in Flight

Standards and a Special Projects Officer in the Civil Aviation Security

Division, neither of which were part of HRMD.

S1 asserted that an upgrade to GS-15 for complainant's position was not

warranted following normal classification computation methods, noting

also that all assistant manager positions in HRMDs nationwide were rated

at GS-14 or below. He acknowledged that he modified the classification

for the Manager, Public and Government Affairs, position based on his

judgment that its new responsibilities, including reporting directly to

headquarters, had not been previously and fully considered.

In its FAD, the agency found that it articulated legitimate,

nondiscriminatory reasons for its actions, i.e., upgrade of complainant's

position, although scoring close to classification as GS-15, was not

justified. Also, the agency held that the classification for the Manager,

Public and Government Affairs, position was properly reconsidered in

light of new responsibilities. It also found that complainant did not

sustain his ultimate burden to demonstrate that the agency discriminated

against him.

In his appeal statement, complainant contended that he stated a

prima facie case and criticized the agency's reasons for its actions.

He further asserted that, because the agency failed to carry its burden

to refute his prima facie case, he demonstrated pretext. The agency

filed comments in support of its FAD.

Generally, analysis of complaints of discrimination follow the tripartite

scheme of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).

A complainant 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 reason 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). Next, the

agency offers rebuttal to complainant's inference of discrimination by

articulating a legitimate, nondiscriminatory reason for its action(s).

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981); see U.S. Postal Service Board of Governors v. Aikens, 460

U.S. 711, 715-716 (1983). Once the agency has met its obligation of

articulation, the complainant bears the ultimate burden to persuade the

fact finder by a preponderance of the evidence that the reasons offered

by the agency were not the actual reasons for its actions but rather

were a pretext for discrimination. St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993). Complainant must show that the agency's action was

more likely than not motivated by discrimination, that is, that the action

was influenced by legally impermissible criteria. Burdine, 450 U.S. at

253; Baker v. USPS, EEOC Petition No. (May 13, 1999). Absent a showing

that the agency's articulated reason was used as a tool to discriminate

against him, complainant cannot prevail. Burdine, 450 U.S. at 256;

Crosland v. Department of the Army, EEOC Petition No. 03990018 (July 1,

1999); Mongere v. Department of Defense, EEOC Appeal No. 01970738 (March

18, 1999).

Where the agency articulates an explanation for its actions, we

may proceed directly to the third step of the McDonnell Douglas

analysis--the ultimate question of whether complainant has shown by a

preponderance of the evidence that the agency's actions were motivated

by discrimination. United States Postal Service Board of Governors

v. Aikens, 460 U.S. 713-14. Here, we find that the agency articulated

legitimate, nondiscriminatory reasons for its actions when it assigned

complainant to a new position and did not upgrade the position to GS-15.

The agency's burden of articulation is not onerous but must be clear

and raise an issue of fact so that complainant has an opportunity to

demonstrate pretext. Burdine, 450 U.S. at 254-256. We find that the

agency's reasons for its actions, as stated by S1, meet this criteria.

S1 stated that upgrade of complainant's position was not warranted,

that his revision of the classification for the position of Manager,

Public and Government Affairs, was proper and justified based on the

recent realignment of the position, and that all branch managers in HRMD

nationwide were at GS-14 or below. This articulation is sufficient to

provide complainant an opportunity to demonstrate pretext.

In support of his claim, complainant criticized the agency's explanation

as "entangled in a web of tales," but none of his arguments undermine

the validity of the agency's stated reasons. Instead, complainant

restates the reasons to justify an upgrade of his position, repeating

his argument that his duties were greatly enhanced and his supervisory

responsibilities increased. It is not the Commission's function to

adjudicate whether complainant's position merited an upgrade, however,

as long as that determination is not based on discriminatory factors.

Here, complainant has not met his burden to demonstrate pretext.

Complainant's argument that his burden under St. Mary's is curtailed

because the agency failed to articulate legitimate, nondiscriminatory

reasons is incorrect. We have found that the agency, in fact, met its

burden of articulation so that complainant was obliged to demonstrate

pretext, which we find that he failed to do.

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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 (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:

12-08-99

Date Carlton Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

__________________________1On November 9, 1999, revised regulations

governing the EEOC's federal sector complaint process went into effect.

These regulations apply to all Federal sector EEO complaints pending at

any stage in the administrative process. Consequently, the Commission

will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),

where applicable, in deciding the present appeal. The regulations,

as amended, may also be found at the Commission's website at WWW.EEOC.GOV.