Carol H. Abercrombie, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 16, 1999
01981617 (E.E.O.C. Apr. 16, 1999)

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