01A10787
03-20-2003
Kenneth Bumpass, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Kenneth Bumpass v. Department of the Navy
01A10787
March 20, 2003
.
Kenneth Bumpass,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A10787
Agency Nos. DON-95-53824-002; DON-95-53824-003
Hearing Nos. 340-98-3402X; 340-98-3403X
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., and the
Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d) 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, a Civilian Personnel Officer at the
agency's facility in Guam filed formal EEO complaints on April 6, 1995,
and September 11, 1995, alleging that the agency discriminated against
him on the bases of sex (male) and prior protected EEO activity when:
(1) by letter dated December 27, 1994, the Naval Surface Force,
U.S. Pacific Fleet Command recommended that his position be classified
as a Personnel Director GS-201-14, instead of GS-15;
on September 1, 1994, the agency delayed forwarding and processing his
position description;
on September 15, 1994, the agency misrepresented the �population
serviced� element of his classification materials;
by letter dated March 14, 1994, the agency gave direction to counsel
him about safeguarding confidential and sensitive information;
by letter dated March 31, 1994, the agency requested a review and status
report on problem areas in his office; and
on an unspecified date two of his subordinates were �highly recommended�
for the Human Resources Management Award for Excellence, while his
nomination was merely forwarded.<1>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge. Following a hearing, the Administrative Judge
issued a decision finding no discrimination. The agency's September
28, 2000 final order implemented the Administrative Judge's decision.
It is from this final order that complainant now appeals.
BACKGROUND
Complainant has worked for the agency since 1972. In 1991, complainant
became a personnel officer, supervising the facility's human resources
staff. In 1993, complainant publicly supported one of his subordinate
employees' EEO complaint. The subordinate employee sought EEO counseling
when she became aware that a coworker received a promotion/upgrade.
The agency subsequently required the human resources staff to be trained
in keeping promotion information confidential. In 1994, complainant
unsuccessfully attempted to have his position upgraded to the GS-15
level. Separately, the agency cited complainant and his staff with poor
performance in processing retirement claims.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National Labor
Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding
regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An Administrative Judge's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.
Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The agency has articulated legitimate nondiscriminatory reasons for the
challenged actions.
We turn first to complainant's assertion that the agency discriminated
against him when it classified him as a Personnel Director GS-201-14,
instead of at the GS-15 grade level. The record establishes that the
authority to classify Civilian Personnel Officer positions in the
U.S. Department of the Navy was centralized in August 1990, at the
Office of Civilian Personnel Management (OCPM). The OCPM assigned a
Position Classification Specialist to review complainant's functional
responsibilities. Using the General Schedule Supervisory Guide,
the Specialist assigned points based upon the nature of complainant's
position. This point system was designed to measure various factors,
including the level of authority and responsibility involved, the size of
workforce served, environmental elements, and the operational character
of the program. Notably, this point system is utilized when classifying
all Personnel Director 201 series positions. Using this point system,
the specialist assigned complainant a total score of 4005 points which
was lower than the 4055 threshold for a GS-15 grade classification.
There is no evidence that the OCPM Classification Specialist, who worked
in a separate duty location, had knowledge of complainant's protected
EEO activity.
Ultimately, complainant appealed his position classification to
the U.S. Office of Personnel Management, who sustained the agency's
classification at GS-201-14. Complainant also argues that the agency
misrepresented the �population serviced� element of his classification
materials. While it is clear that the �population serviced� element is
a factor in reaching an ultimate determination on grade classification,
there is no evidence in this record that the agency misrepresented
the figure. 4500 employees was the number advanced by the agency as
the population serviced by complainant's position. This number was
generated by the Commanding Officer. Using a different source, the
Central Personnel Data file, the U.S. Office of Personnel Management,
came very close to the 4500 population serviced figure reported by
the agency. The agency explains that the difference in figures would
not have resulted in a change in the GS-14 classification.
Complainant argues that he was discriminated against when it took sixty
days for his reclassification package to be forwarded to the appropriate
officials. Regarding the delay in forwarding complainant's classification
request, the agency explains that the responsible official was on
official travel, and that she later sustained a family tragedy which
slowed the processing of complainant's package. The agency explains
that these unfortunate and unpredictable events interfered with the
efficient forwarding of complainant's reclassification materials.
Complainant also complains that he was discriminated against when he did
not receive a ringing endorsement for the Human Resources Management Award
for Excellence, while two of his subordinates were heartily recommended
for the award. Complainant's Commanding Officer reports that he recommend
complainant for the award, but that he did not give complainant a
ringing endorsement because of the manner in which complainant pursued
his reclassification request. Specifically, the Commanding Officer
reports that complainant unscrupulously modified his position description
before submitting it to the Office of Personnel Management. The agency
explains that, given these circumstances, a ringing recommendation for
a human resources management award was inappropriate.
Complainant argues that he was retaliated against when, by letter
dated March 14, 1994, the agency gave direction to counsel him about
safeguarding confidential and sensitive information. The record
reveals that complainant supported an EEO complaint filed by one of
his subordinate employees. The subordinate employee first sought
EEO counseling when she became aware that another employee received
a promotion/upgrade. Following the complaint, complainant's superiors
became concerned that sensitive information concerning civilian personnel
issues, i.e., information about promotions and upgrades, were not being
adequately safeguarded. As a result, the agency ordered counseling
for the entire human resources staff relating to safeguarding official
information. The agency explains that it has a legitimate management
interest in ensuring that the human resources staff maintains the
confidentiality of personnel records.
Complainant also alleges that he was discriminated against when on March
31, 1994, the agency requested a review and status report on his office's
record of poor processing of retirement claims. The agency explains that
the review and status reports it ordered were required in response to
poor retirement claims processing ratings of July and September 1993.
The agency points out that it believes that poor retirement claims
processing is a chronic problem with the complainant's office, and that
complainant's successor received a similar letter in January 1991.
Complainant has failed to demonstrate that the agency's explanations are
pretexts for discrimination and/or retaliation, or that they are otherwise
unworthy of belief. The Commission finds that the Administrative Judge's
findings of fact are supported by substantial evidence in the record and
that the Administrative Judge's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We find no evidence that the agency intentionally discriminated against
complainant on the basis of his sex and/or his participation in protected
EEO activity.
Equal Pay Act
We note that claims of wage discrimination based on sex can also be
analyzed under the EPA. The EPA was enacted to remedy the problem of
sex-based wage discrimination. In essence, it requires that employees
doing equal work should be paid equal wages, regardless of sex.
To establish a violation of the EPA, complainant must show that he
received less pay than an individual of the opposite sex for equal work,
requiring equal skill, effort, and responsibility, under similar working
conditions within the same establishment. 29 C.F.R. Part 1620; Arnold
v. Department of Treasury, EEOC Appeal No. 01960490 (July 28, 1998).
In support of his EPA claim, complainant compares himself with two
GS-201-15 female personnel officers. In both cases, complainant fails
to demonstrate that his comparators perform their jobs under �similar
working conditions.� 29 C.F.R. � 1620.18. While they share the same
title of personnel officer, the record evidence demonstrates that when
viewed through the federal management standard, complainant's comparators
perform at a GS-15 level which corresponds to their level of authority
and responsibility, size of workforce served, environmental elements,
and the operational character of the program. In this respect, we find
that complainant failed to establish that he was performing equal work,
requiring equal skill, effort, and responsibility. Moreover, the pay
differential is justified by the gender neutral, federal personnel
classification system.
CONCLUSION
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 agency's
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
March 20, 2003
__________________
Date
1 The Commission, twice, remanded the agency's
procedural dismissals of portions of this complaint. Bumpass v. Navy,
EEOC Appeal No. 01955810 (August 27, 1996); Bumpass v. Navy, EEOC Appeal
No. 01962720 (May 19, 1997).