01993667
11-02-2000
George Reavill, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
George Reavill v. Department of the Navy
01993667
November 2, 20001
.
George Reavill,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01993667
Agency No. DON-94-68836-002
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that he was discriminated against on the bases of disability
(arteriosclerosis/neuropathy) and religion (Jewish), when he was denied
promotion to the full performance level as a General Supply Specialist,
GS-9.
The record reveals that during the relevant time, complainant was employed
as a General Supply Specialist, GS-7, at the Fleet and Industrial Supply
Center, Jacksonville, Florida. On June 6, 1988, complainant was placed
in a entry level, GS-7, position under the Naval Supply Center Training
Agreement. This agreement entered complainant into the Master Stovepipe
Training Plan (stovepipe), which would allow complainant, upon the
completion of his training plan, to be promoted to his target position
of GS-9 as an exception to the usual competitive promotion procedures.
When stovepipe was first initiated, there were no time limits set
for the completion of the training plan, and almost all employees who
completed the plan were promoted to the GS-9 level. In 1990, however,
it was discovered that the budget could no longer support all of the
promotions to GS-9, and as a result, a memo was submitted on September 27,
1990, suspending all automatic career ladder promotions. It was stated
that all future promotions would be made subject to new guidelines which
established that there had to be: 1) an opening; 2) money; 3) some need;
and 4) a budget for the following year. (Counselor's Report, page 3).
On January 17, 1991, complainant received a copy of a personnel action
stating that he was being reassigned to a position at the GS-7 full
performance level, and that he would then have to compete for GS-9
vacancies with others at the same grade level.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on March 21, 1994.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing before an Administrative Judge, but later
rescinded the request and the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of religious or disability discrimination, in that the
record shows a number of other employees, outside complainant's protected
classes, who were also not promoted to the GS-9 level. The agency further
concluded that it articulated legitimate, non-discriminatory reasons for
its actions which complainant failed to show were pretextual. On appeal,
complainant addresses numerous errors he contends are contained in the
agency's appeal brief. Complainant also reiterates various arguments made
in his formal complainant, regarding his training plan, and the agency's
failure to promote other disabled employees. The agency requests that
we affirm its FAD.
Complainant has alleged a claim of disparate treatment which is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979). This established order of analysis in discrimination
cases, in which the first step normally consists of determining the
existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason
for the personnel action at issue, the factual inquiry can proceed
directly to the third step of the McDonnell Douglas analysis, the
ultimate issue 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. 711,
713-714 (1983); Hernandez v. Department of Transportation, EEOC Request
No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human
Services, EEOC Request No. 05900467 (June 8, 1990).
Here, the Commission finds that, assuming, arguendo, complainant
established a prima facie case of discrimination on the bases of
religion and disability, the agency has articulated legitimate,
non-discriminatory reasons for its actions. Namely, that when the
stovepipe program was initiated, all employees who completed their
training plans were considered for promotion, and most were granted it.
Due to financial constraints, however, the agency was subsequently forced
to pull certain programs from the training plan and fewer employees were
promoted. The agency states that due in part to the fact that neither
complainant's former supervisor, nor complainant himself, recommended
complainant for a promotion prior to the downsizing of the stovepipe
program, he was not awarded one.
While the record contains discrepancies with regard to the number of
eligible individuals who did not receive promotions, and the exact date
on which complainant completed his training plan, we nevertheless find
that, complainant has failed to present evidence that more likely than
not, the agency's articulated reasons for its actions were a pretext
for discrimination. Further, although complainant calls into question
the manner in which the agency handled the downsizing of stovepipe
and the limiting of automatic promotions, the Commission can not
second guess an employer's business decisions but can focus only on
an employer's motivation for such decisions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). Complainant has
adduced no persuasive evidence to show that his religion or disability
were factors in his not receiving a promotion to the GS-9 level.
Therefore, after a careful review of the record, including complainant'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 (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
November 2, 20001
__________________
Date