03A20018
04-09-2002
Gilmer W. Davis v. Department of the Air Force 03A20018 April 9, 2002 Gilmer W. Davis, Petitioner, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Gilmer W. Davis v. Department of the Air Force
03A20018
April 9, 2002
Gilmer W. Davis,
Petitioner,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Petition No. 03A20018
MSPB No. AT-0351-00-0825-I-1
DECISION
On December 3, 2001, Gilmer W. Davis (petitioner) filed a timely petition
with the Equal Employment Opportunity Commission (EEOC or Commission)
asking for review of a Final Order issued by the Merit Systems Protection
Board (MSPB or Board) concerning his claim of discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. Petitioner, a GS-7 Recreation Specialist,
at the agency's Hurlburt Field, Florida, alleged that he was subjected
to retaliation for prior EEO activity (complaints filed under Title VII)
when he was demoted by application of reduction-in-force (RIF) procedures
on August 15, 2000.
Petitioner filed a mixed case appeal with the MSPB. After a hearing, the
Administrative Judge (AJ), found that the agency established that the RIF
procedures were appropriate and properly invoked under the circumstances;
that petitioner was afforded proper assignment rights; and that petitioner
failed to meet his burden that the RIF was initiated in reprisal for his
prior EEO activity. The Board denied petitioner's petition for review.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c). Neither party submitted a statement in support
of or in response to the petition.<1>
2
Petitioner was informed that his position, Supervisor Recreation
Specialist, GS-09, would be abolished due to a RIF. Thereafter,
petitioner was offered and accepted a new position of Recreation
Specialist, GS-07. The RIF notice advised that if petitioner did not
accept the position, he would be separated from service. The notice
also advised that if he did not accept the new position, the agency
would continue to search for a better position to offer.
During all pertinent times, the Deputy Chief of Service Squadron (DC)
had been in a supervisory position above petitioner. On or about
1993, petitioner had filed an EEO complaint when he was given a letter
of reprimand by DC. Petitioner also filed EEO complaints against the
agency in November 1996, March 1997, March 1999, and April 1999. DC was
aware of petitioner's prior EEO activity. DC made the recommendation to
the Commander to RIF petitioner's position. The Chief, Family Member
Programs (Chief), petitioner's second level supervisor, concurred in
the recommendation. The decision to RIF the GS-09 position was made by
the DC and the Commander. Petitioner basically alleged that his past
experiences with DC resulted in his position being subjected to the RIF.
DC testified that the position was subject to the RIF only after careful
consideration of the mission of the agency and concluding that elimination
of petitioner's position would be less disruptive than elimination of
other positions. The DC and the Chief testified that petitioner's prior
EEO activity was not a factor in the decision to eliminate the position.
Petitioner did not testify at the hearing and did not call any witnesses
on his behalf.
The AJ found that the agency presented sufficient evidence that a bona
fide reorganization took place and that the agency exercised legitimate
management consideration when exercising its discretion to abolish the
petitioner's GS-9 position. The AJ also found that petitioner received
the best offer of assignment to which he was entitled when he accepted
the GS-7 position.
The AJ also found that petitioner failed to present sufficient evidence to
establish a prima facie case of reprisal discrimination. Even assuming
that petitioner established a prima facie case, he failed to establish
that the agency's explanations for the RIF and his demotion were pretext.
The AJ found that the agency presented evidence to establish that
it still would have affected the RIF even absent petitioner's prior
protected activity. The AJ thus concluded there was no evidence that
the RIF was personal to the petitioner.
3
After a careful review of the record, and considering arguments and
evidence not specifically discussed in this decision, we find that
petitioner has failed to establish by a preponderance of the evidence
that his prior EEO activity, rather than the RIF, motivated his demotion.
Accordingly, the Commission finds that the MSPB's decision constitutes
a correct interpretation of the laws, rules, regulations, and policies
governing this matter and is supported by the evidence in the record
as a whole. The Commission CONCURS with the MSPB's finding of no
discrimination.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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
April 9, 2002
Date
4
1 Petitioner submitted a Motion for
Continuance requesting a Commission order continuing the instant
matter pending a decision by the MSPB on his Motion for Reopening and
Reconsidering the Board's Final Decision. There is no right to reopen
the MSPB's decision in this matter.