01981617
04-16-1999
Carol H. Abercrombie, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Carol H. Abercrombie, )
Appellant, )
) Appeal No. 01981617
v. ) Agency No. 88-07-0012
) Hearing No. 120-96-5543X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning her
allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission hereby
accepts the appeal in accordance with EEOC Order No. 960, as amended.
The issue presented is whether appellant proved, by a preponderance of the
evidence, that she was discriminated against because of her race (Black)
when: (1) she was not given the opportunity to compete for a detail to
the position of Assistant Director for Community and Family Activities,
GS-12; and (2) subsequently, around July of 1987, she was not promoted
when that position was ostensibly upgraded to the GM-13 level through
accretion of duties.
At the time of her complaint, appellant was employed by the agency as
the Alcohol and Drug Abuse Control Officer, GS-101-12. Believing that
she was a victim of discrimination, appellant sought EEO counseling and
later filed a formal EEO complaint dated March 15, 1988, wherein she
alleged that she had been discriminated against on the basis of race
(Black) when the above agency actions took place.
On April 23, 1990, the parties next entered into a settlement agreement.
Subsequently, however, appellant alleged that the agency had breached
the terms of the agreement and sought to reinstate her complaint.
When the agency denied appellant's request, appellant appealed to us,
and we issued a decision granting appellant's request for reinstatement.
EEOC Appeal No. 01953782 (May 16, 1996).
The agency then complied with all procedural and regulatory prerequisites,
and on November 13, 1997, the EEOC Administrative Judge (AJ) issued
a Recommended Decision (RD) without a hearing, since he determined
that no genuine issue of material fact existed, and his RD found no
discrimination based on race. Subsequently, the agency adopted the RD
as its own final decision.
On appeal, appellant's attorney argues that a genuine issue of material
fact does exist. He contends that the original position of the
comparative employee (CE) who was detailed, that of Program Manager,
GS-340-12, was abolished when she was detailed. He further contends
that the position to which she was detailed was the same as that GS-13
position to which she was later promoted (a dual position of Deputy
Director and Assistant Director of Community and Family Activities),
and that the promotion was accomplished through accretion of duties to
avoid having to let appellant compete for the position. The agency did
not respond to appellant's contentions on appeal.
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We therefore discern no
basis to disturb the AJ's finding of no discrimination.
We note in particular that appellant failed to establish a prima facie
case of discriminatory nonselection based on race, because she could not
show that she was similarly situated as the white CE who was detailed.
See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th
Cir. 1975). In this regard, the Commission has held that in order to be
considered similarly situated, the complainant must, among other things,
have performed the same job function as the CE. See Birdsong v. Commerce,
EEOC Request No. 05920762 (January 7, 1993).
Although appellant and the CE were both at the GS-12 level, appellant
was responsible only for her division, whereas the CE, who also served
as Deputy Director, was responsible for all the divisions in the entire
Directorate, which included appellant's division. Unlike appellant, the
AJ found that the CE participated fully with the Director in the direct
line of training, managerial, and personnel management functions essential
to accomplish the mission of the directorate as a whole. We concur with
the AJ's finding that it was because of her additional duties as the
Deputy Director, as well as those of Program Manager, that the CE was
eligible for noncompetitive promotion to the GS-13 level by accretion of
duties, since the newly created GS-13 position included those same duties.
In this regard, we note that the AJ found that CE's position as Deputy
Director was not abolished when she was detailed, contrary to appellant's
contention, but that she then returned to her Deputy Director position
once the detail ended on January 29, 1987; further, that she was then
temporarily promoted to the position of Director, GS-13, for three
months ending April 28, 1987, before returning once again to her
original position as Deputy Director. We find that this three months
of experience as the temporary Director also helped to qualify the CE
for a noncompetitive promotion to GS-13 as the Deputy Director with
the additional function of Assistant Director for Community and Family
Activities.
It is accordingly the decision of the EEOC to AFFIRM the agency's final
decision in this matter.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the 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. �l6l4.604(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:
April 16, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations