01975002
11-05-1999
Franklin N. Hunt, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Franklin N. Hunt, )
Appellant, )
) Appeal No. 01975002
v. ) Agency No. XL-95-019
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) 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.
Appellant alleges that the agency retaliated against him for prior
EEO activity by denying him re-promotion to a GS-12 level position. In
support of his claim, appellant identifies the following incidents:
(1) the reclassification of the GS-334-12 Computer Specialist position at
DPRO Pratt & Whitney was delayed until after his re-promotion eligibility
expired on September 27, 1994;
(2) he was not referred for the GS-334-12 Computer Specialist position
at DPRO Pratt & Whitney;
(3) he was not referred for the GS-1910-12 PROCAS Facilitator position at
DPRO Hamilton-Standard which the agency filled by �job enlargement�; and
(4) he was not referred for the GS-0018-12 Safety Specialist position
in the Defense Contract Management Area Operations Hartford.
The Commission accepts the appeal in accordance with EEOC Order
No. 960.001. For the following reasons, we affirm the FAD.
The record reveals that during the relevant time, appellant was working
as a GS-1910-11 Quality Assurance Specialist at the agency's DPRO Pratt &
Whitney facility, having been downgraded from a GS-1910-12 position as
a result of a RIF in September 1992. Believing the agency retaliated
against him as referenced above, appellant sought EEO counseling and
subsequently filed a complaint on January 25, 1995. At the conclusion
of the investigation, appellant requested a hearing before an EEOC
Administrative Judge. He subsequently withdrew that request and
the agency issued a final decision finding no retaliation from which
appellant now appeals. Appellant contends that the FAD misrepresents
the evidence of record in order to reach an erroneous conclusion.<1>
The agency requests the we affirm its finding of no retaliation.
The FAD found a prima facie case of retaliation since a number of named
responsible management officials were either aware of or involved in
appellant's prior EEO activity which occurred sufficiently close in
time to the alleged retaliation. The FAD determined that the agency
articulated legitimate, nondiscriminatory reasons for its actions, namely
that the reclassification of the GS-334-12 Computer Specialist position
was delayed by a confluence of administrative factors unconnected to
appellant and that the agency was only required to refer appellant for
re-promotion to positions for which he was qualified, of which there
were none.<2> The FAD concluded that appellant failed to prove, by a
preponderance of the evidence, that these explanations were a pretext
for unlawful retaliation.
Based on the standards set forth in McDonnell Douglas v. Green, 411
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases), the
Commission agrees with the agency that appellant failed to prove pretext.
In reaching this conclusion, we find that appellant, who was only
entitled to be referred for re-promotion to a position for which he was
qualified, presented no credible evidence that he was qualified for
either the GS-334-12 Computer Specialist position or the GS-0018-12
Safety Specialist position in so far as both positions required
the equivalence of one year's worth of experience at the respective
GS-334-11 or GS-0018-11 level. Moreover, there is no evidence to
support a finding that the individuals selected for these positions
did not have the requisite experience. Since appellant presents no
evidence that he was qualified for the GS-334-12 Computer Specialist
position either before or after it was reclassified, we credit the
agency's explanation that the delay was unconnected to appellant's
re-promotion eligibility.<3> We also find that the GS-1910-12 PROCAS
Facilitator position, for which appellant was plausibly qualified,
was exempt from referral because the agency upgraded the position from
a GS-11 level to a GS-12 level by way of a �job enlargement.� A �job
enlargement� is a promotion through reclassification wherein a position
with sufficiently increased duties and responsibilities is upgraded.
The promotion is solely intended for the individual holding the position
which is enlarged. Appellant fails to persuade the Commission that the
agency resorted to a �job enlargement� solely to avoid promoting him.
Had the agency not enlarged the job, there would be no GS-1910-12 level
PROCAS Facilitator position. Moreover, the job enlargement was underway
before appellant expressed interest in the position. Accordingly, we
find the evidence insufficient to support a finding of retaliatory animus.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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:
November 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 In his brief in support of appeal,
appellant alleges race and color discrimination in addition to
retaliation, bases which he alleged in previous EEO complaints.
Since appellant failed to raise these bases prior to the conclusion
of the investigation of the instant complaint, we will not address
them for the first time on appeal.
2 The Priority Placement Program (PPP) did not require the agency to
automatically refer appellant for re-promotion since he was a Priority 3
registrant (demotion less than two GS grades or the equivalent). However,
a local Re-promotion Program provided that he should be referred for
positions for which he was qualified.
3 We note that, through the Merit Promotion Plan, appellant was eligible
to compete for the GS-334-12 Computer Specialist position after it was
reclassified but declined to do so.