01a44681
12-08-2005
Gene Reynolds, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Gene Reynolds v. Department of the Army
01A44681
12-08-05
.
Gene Reynolds,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A44681
Agency No. AQFZPI0203C0010
Hearing No. 370-2003-02349X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. , and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that complainant, formerly employed as a GS-00118-12
Safety and Occupational Health Manager at the agency's Area I Support
Activity in Uijongbu, Korea (�facility�), filed a formal EEO complaint
on May 15, 2002, alleging that the agency discriminated against him on
the bases of disability (back pain), age (60), and reprisal for prior
EEO activity when the agency delayed his promotion to the GS-13 level.
The record reflects that complainant began his employment at the
facility in December of 2000, and thought his position should be
upgraded to the GS-13 level. However, the agency did not take any
action on complainant's request until May 11, 2001. Investigative File
(IF) at 124, 326. The record further reflects that all personnel
actions for agency civilian employees employed in Korea are processed
by the agency's Civilian Personnel Operations Center for Korea (CPOC).
On May 11, 2001, a request for a review of complainant's position for
upgrade to the GS-0018-13 level was initiated by the Area I Commander
(�Commander�), but this request got no further than the Area I Resource
Management office. In June of 2001, a position classification specialist
at CPOC reviewed a position description of complainant's duties and found
that under Office of Personnel Management (OPM) standards, the position
should be classified as a GS-12. IF at 226. On July 26, 2001, the
Commander submitted another request for personnel action to the Civilian
Personnel Advisory Center (CPAC) with a list of duties and an evaluation
statement citing OPM evaluation standards, but without a formal position
description and without a required statement from the Commander stating
that he was exercising his delegated classification authority to have
the position upgraded.<1> IF at 133, 257-267. On August 16, 2001,
the CPOC Director signed a memorandum which stated that the position
was rated as a GS-12 and the Commander could exercise his delegated
classification authority to submit a new request for personnel action,
supported by a completed position description, an evaluation statement
citing the correct OPM standards and an Eight U.S. Army (EUSA) Job
Classification Report. IF at 135-137, 268-270. However, the CPOC did
not process any personnel actions between September 4, 2001 and November
16, 2001 as it was changing its computer systems. IF at 144-145, 233-237.
On December 14, 2001, the Commander signed the required documentation
and submitted a position upgrade request package to CPOC. Due to
administrative processing delays and the absence of certain required
documents, the upgrade request package was not reviewed by CPOC until
January 31, 2001. IF at 152-154, 157, 159. When all required documents
were submitted by the Commander, the position upgrade was completed and
approved by CPOC on February 15, 2002 with an effective date of February
10, 2002. IF at 152-154. As such, the record reflects that when the
completed documents were submitted with the upgrade request package,
CPOC approved the upgrade in sixteen days. Complainant alleged that
the CPOC Director and CPOC personnel discriminated against him when his
promotion to the GS-13 level was unreasonably delayed.
Believing he was the victim of discrimination, complainant sought
EEO counseling and filed the aforementioned formal complaint. At the
conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). By Notice and Order dated August 25, 2003, the AJ stated
that on the basis of the evidence in the investigative report and
the submissions of the parties, she would decide whether a hearing was
necessary. Complainant responded, stating that the agency discriminated
against him. The agency also responded, urging a decision without a
hearing. Incorporating the agency's response to his Notice and Order, the
AJ then issued a decision without a hearing, finding no discrimination.
The AJ found that complainant failed to meet his burden of establishing
by a preponderance of the evidence that he was subjected to disparate or
adverse treatment due to his age, disability and/or prior EEO activity.
As such, the AJ stated that after reviewing all the evidence of record in
a light most favorable to complainant, she found that complainant failed
to demonstrate discrimination. The agency's final order implemented
the AJ's decision. Complainant makes no new contentions on appeal,
and the agency requests that we affirm its final order.
After a careful review of the record, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material fact
exists. We find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Complainant alleged that Safety Managers for the EUSA and in other agency
Areas were upgraded to the GS-13 level with less processing time than
was involved in his eventual promotion. We find that complainant failed
to establish a prima facie case of discrimination on the bases of age,
disability<2> or retaliation, as he failed to demonstrate that there were
any similarly situated agency employees who were treated differently under
similar circumstances. However, even assuming arguendo that a prima
facie case of discrimination was established, the record demonstrates
that when other Safety Managers were upgraded to the GS-13 level,
CPOC had previously classified the position at the GS-12 level and the
employee's Commander or manager exercised his delegated classification
authority to upgrade the position at the GS-13 level. This is the exact
situation which occurred in the processing of complainant's position
upgrade to the GS-13 level. The record establishes that complainant's
position was classified at the GS-12 level by CPOC, but his position was
upgraded to the GS-13 level after the Commander exercised his delegated
classification authority.
We also find that complainant failed to proffer evidence which
supports his allegation that the CPOC Director and/or CPOC personnel
discriminated against him on any basis when his upgrade to the GS-13
level was not processed in a timely manner. While there were several
delays involved in the processing of the position upgrade request,
construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward his protected
classes. The record establishes that the delays in processing the
upgrade request occurred as the Commander did not properly prepare
and submit the required documentation when the request was initially
submitted to CPOC. Therefore, after a careful review of the record,
including complainant's contentions on appeal and arguments and evidence
not specifically addressed in this decision, we affirm the final order.
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
______12-08-05____________
Date
1 The request for personnel action also did not contain an Eighth
U.S. Army (EUSA) Civilian Job Classification Report.
2For purposes of analysis, the Commission assumes complainant is an
individual with a disability.