0120064119
01-19-2007
Loretta J. Alston, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Loretta J. Alston,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01200641191
Agency No. 04-11-047
Hearing No. 100-2005-00746X
DECISION
Complainant filed an appeal from the agency's final action concerning
her equal employment opportunity (EEO) complaint claiming 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 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(a).
During the relevant time complainant was a Grants Specialist, GS-11,
at the agency's Office of Contracts and Grants Management (OCFM) in
Washington, D.C.
On October 3, 2002, complainant initiated contact with an agency
EEO Counselor and filed a formal EEO complaint on January 23, 2004.2
Therein, complainant claimed that she was discriminated against on the
bases of race (African-American), sex (female), color (black) and age
(D.O.B. 10/18/73) when:
1. on September 9, 2003, the agency failed to respond to an inquiry
concerning the results of a desk audit;
2. in January 2004, the agency failed to promote her, despite doing
work above her grade level for the past three years; and
3. in January 2004, the agency reassigned her to a new unit without
providing formal documentation.
On July 8, 2004, the agency issued a final decision. The agency
dismissed the three claims. On appeal, the Commission reversed the
agency's dismissal of claims 1 and 2, and remanded them to the agency
for further processing. The Commission determined that complainant
essentially abandoned the reassignment claim (claim 3). On remand, the
Commission ordered the agency to process claims 1 and 2, in accordance
with 29 C.F.R. � 1614.108. Alston v. Department of Labor, EEOC Appeal
No. 01A45382 (November 29, 2004).
At the conclusion of the investigation of claims 1 and 2, complainant
received a copy of the investigative report and requested a hearing before
an EEOC Administrative Judge (AJ). On December 27, 2005, the AJ issued
a Notice of Intent to issue a decision without a hearing, allowing the
parties to file a written response to the Notice. The record reveals
that both parties responded.
On April 17, 2006, the AJ issued a decision without a hearing finding
no discrimination. The AJ found that the agency articulated legitimate,
nondiscriminatory reasons for its actions and that complainant did not
demonstrate that the agency's reasons lacked credence. The AJ also found
that complainant did not provide any pretextual evidence proving that
the agency's failure to respond to an inquiry concerning the results of
her desk audit (claim 1) and not promoting her to GS-12 level or higher
after the conclusion of her desk audit (claim 2) were based on her race,
sex, color or age.
On June 7, 2006, the agency issued a final order wherein it implemented
the AJ's decision finding no discrimination concerning claims 1 and 2,
which is the subject of the instant appeal.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. At 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. At 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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. See U.S. 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); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for
its actions. The record contains an affidavit from complainant's
first-level supervisor (S1). Therein, S1 stated that in regard to claim
1, complainant "always received favorable and generous performance
evaluations and [was] accorded recognition with special awards . . .
not less than everyone else on my staff." S1 stated that complainant
received regular career-ladder promotions from "GS-05 to GS-07 to GS-09
and to GS-11" and was now at the journeyman level for her position.
S1 stated that the result of complainant desk audit "found that the
[complainant's] position [was] classified at the GS-11 level. The OPM
[Office of Personnel Management] classification standards of what a
GS-12 is, prevailed."
Further, S1 stated that he was involved in the process of complainant's
desk audit when he met with the desk auditor to discuss her draft
report of complainant's desk audit; and was asked to provide comments
on the draft audit report. S1 further stated he discovered several
inaccuracies in the draft report made by complainant, and therefore
he made substantial changes. Specifically, S1 stated that he felt
that what complainant may have communicated to the auditor "was an
inaccurate and overstated representation of: specific job duties and
responsibilities, level of difficulty, the level of supervision that
they were actually under." S1 stated that he also felt that complainant
did not "communicate the allocation of time spent on the major tasks."
S1 stated, for example, that the desk auditor was unaware that the grant
modifications and award letters were initially drafted by the program
officers. In summary, S1 determined that the nature and complexity
of the work performed; the scope and purpose of personal contacts; and
supervisory controls were not accurately reflected. S1 further stated
that the report "seemed to assume that their work involved the more
in-depth analysis/interpretation/determinations and the more traditional
procurement/competitive features of the grand management position (it
does not)." Furthermore, S1 stated that a final report was issued to
complainant "after all discrepancies in the original draft were cleared
up."
Regarding claim 2, S1 stated that complainant has been performing duties
similar to the GS-12 staff which she used as a comparison. S1 stated,
however, that the "true test of grade level determination was determined
by a desk audit (i.e. GS-11 at the most) against the OPM classification
standards, which found the complainants' jobs classifiable at the GS-11
level." S1 stated that based on the findings of complainant's desk audit,
there was no basis for an upgrade. Regarding complainant's assertion that
she was performing at the same level as GS-13, S1 stated that her claim
was totally unsupportable because "the GS-13 are leaders and are expected
to perform above the journeyman level of duties and responsibilities."
Furthermore, S1 stated that he did not discriminate against complainant
based on her race, sex, color and age.
The record contains an affidavit from a Human Resources Servicing
Specialist (Specialist). Therein, the Specialist stated that in
September 2002, S1 informed her that complainant requested a desk
audit (as addressed in claim 1). The Specialist further stated that
on September 20, 2002, she sent an e-mail to complainant requesting
her to submit a formal request for a desk audit "describing the
significant changes that have occurred with [her] position, thereby
justifying the need for the audit; a current position description;
and a proposed position description, including the changes that have
occurred with their position." The Specialist stated that after
receiving the requested documentation from complainant, she met with
her to discuss the desk audit. The Specialist stated that due to a
heavy workload in the Office of Human Resources (OHR) and the National
Office reorganization, OHR management decided to hire a classification
contractor to complete complainant's desk audit request. The Specialist
stated that after the contractor completed complainant's desk audit,
she sent the report and classification report to her, OGCM management,
S1 and to an identified agency official for review and concurrence.
The Specialist stated that a review of complainant's desk audit report
indicated that complainant's duties and responsibilities was "properly
classified as a Grant Management Specialist, at the GS-11 grade level
in accordance with the OPM's classification standards." The Specialist
stated that once complainant's desk audit report was completed, it was
her responsibility to deliver the desk audit determination letter to
complainant.
Regarding complainant's assertion that in July 2003, the Specialist
informed her that the paperwork for the first desk audit was lost, the
Specialist denied making the statement. Specifically, the Specialist
stated that in July 2003, she informed complainant that "due to the heavy
workload in OHR a classification contractor had been hired in order to
expedite her request and her package would be provided to the contractor
for processing."
Regarding complainant's assertion that it took approximately four months
for her request for a desk audit to be decided, the Specialist stated that
it took time for the contractor to meet with complainant and CW1; and to
prepare the desk audit report and classification report. The Specialist
further stated that the contractor then e-mailed the documents to her to
forward to OGCM management including S1 and an identified agency official
for "review, edits and concurrence." The Specialist stated that S1 "had
several changes, edits and clarifications that needed to be made to the
desk audit report, so S1 and [the named Contractor] met to discuss."
The Specialist stated that after S1 clarified complainant's duties in
the report, the contractor made some changes. The Specialist stated that
"finally, the report was final and it was delivered to the employees."
Regarding claim 2, the Specialist stated that complainant was not promoted
to the next grade level because the contractor "classified the position in
OPM's classification standards based on the duties and responsibilities
that . . .[Complainant] and [S1] demonstrated during the desk audits
and interviews, which resulted in the denial of the upgrade."
Finally, we find that complainant has not demonstrated that the agency's
articulated reasons for its actions were a pretext for discrimination.
The agency's final action implementing the AJ's finding of no
discrimination concerning clams 1 and 2 is AFFIRMED.
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
January 19, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The record reflects that complainant and an identified co-worker
filed identical but separate complaints concerning the same issues.
We will only focus on complainant's complaint in the instant appeal.
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0120064119
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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