01974427
07-26-2000
Mark F. Kennedy, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Mark F. Kennedy v. Department of Transportation
01974427
July 26, 2000
Mark F. Kennedy, )
Complainant, )
)
v. ) Appeal No. 01974427
) Agency No. DOT-95-0171
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal is accepted by the Commission in
accordance with the provisions of 64 Fed. Reg 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).<1>
ISSUE PRESENTED
The issue presented is whether complainant has established by a
preponderance of the evidence that the agency discriminated against him
on the basis of sex (male) when upon reassignment in October 1990 to a
position at the Regional Office he was forced to take a down-grade from
GM-15, step 4, to GS-14, step 10.
BACKGROUND
On September 9, 1994, complainant, then an Area Manager, GS-2152-15,
with the agency's Federal Aviation Administration (FAA), commenced EEO
counseling on the above-stated issue. Efforts to resolve complainant's
concerns informally were not successful. On November 21, 1994,
complainant filed a formal EEO complaint setting forth multiple claims
of discrimination, including the sole allegation which had been raised
during counseling. The agency accepted the complaint for investigation.
The statement of the issue accepted was revised several times with input
from complainant. The statement of the issue finally agreed upon was
set forth as follows in a November 7, 1996, letter from the agency to
complainant:
Were you [complainant] discriminated against because of your sex (male)
when upon reassignment to a position at the Regional Office in or around
October 1990, you were forced to take a downgrade to GS-14.
In August 1994, you learned that [Employee A] (female), an individual you
believe to be similarly situated to yourself, was allowed to receive pay
and benefits at the GS-15 level while detailed to the regional Office
beginning in May 1993. Further, you believe that this was a result of
an FAA policy which you believe ensures priority treatment to females
in regard to career advancement; specifically, you cite Notice 3400.34,
Performance Standards for Developing Employees, dated December 13, 1991.
The agency conducted an investigation, provided complainant with a
copy of the investigative report, and advised complainant of his right
to request either a hearing before an EEOC administrative judge (AJ)
or an immediate final agency decision (FAD). Complainant requested,
and was granted, an extension of time in which to review and respond to
the investigative report and elect between a hearing and an immediate
FAD. Thereafter, complainant requested an immediate FAD. On April 14,
1997, the agency issued a FAD finding no discrimination. It is from
this decision that complainant now appeals.
ANALYSIS AND FINDINGS
This case involves a complaint alleging employment discrimination based
on sex. In any proceeding, either administrative or judicial, involving
an allegation of discrimination, it is the burden of the complainant to
initially establish that there is some substance to his or her allegation.
In order to accomplish this burden the complainant must establish a
prima facie case of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). This means that the complainant must present
a body of evidence such that, were it not rebutted, the trier of fact
could conclude that unlawful discrimination did occur. The burden then
shifts to the agency to articulate a legitimate, non-discriminatory
explanation for its action. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). In this regard, the agency need only produce
evidence sufficient "to allow the trier of fact rationally to conclude"
that the agency's action was not based on unlawful discrimination.
Id. at 257. Once the agency has articulated such a reason, the question
becomes whether the proffered explanation was the true reason for the
agency's action, or merely a pretext for discrimination. St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although the burden
of production, in other words, "going forward," may shift, the burden
of persuasion, by a preponderance of the evidence, remains at all times
on the complainant. Burdine, 450 U.S. at 256.
Notwithstanding the agency's analysis, the Commission is not persuaded
that complainant has established a prima facie case of sex discrimination
with regard to being downgraded when he was reassigned to a position
in the Regional Office. Complainant is a member of a protected group
by virtue of his sex (male). However, he has not shown that he was
treated differently than any similarly situated employee outside of his
protected group. See Potter v. Goodwill Industries of Cleveland, Inc.,
518 F.2d 864, 865 (6th Cir. 1975). In order for two or more employees to
be considered similarly situated for the purpose of creating an inference
of disparate treatment, complainant must show that all of the relevant
aspects of his employment situation are nearly identical to those of
the comparative employees whom he alleges were treated differently.
Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985).
In this case, however, complainant is comparing himself, who voluntarily
accepted permanent reassignment to a Regional Office position that he
knew was graded GS-14, to two female employees who, three years later,
were temporarily detailed to various Regional Office positions while
retaining their GS-15 grades. The Commission finds that complainant and
the comparative employees therefore were not similarly situated in all
relevant aspects of their employment. Neither is there other evidence
of record to raise an inference of sex-discriminatory animus at the time
complainant was reassigned to the GS-14 Regional Office position.
Assuming for the sake of argument that complainant had established a
prima facie case of sex discrimination, the agency has met its burden to
articulate a legitimate, non-discriminatory explanation for its actions.
The agency explained that the female comparatives were temporarily
detailed to various Regional Office positions, which allowed them to
retain their grades. Complainant, by contrast, voluntarily accepted
permanent reassignment to a GS-14 Regional Office position, a move which
required him to accept a down-grade from GM-15 to GS-14.<2> The agency
further explained the circumstances of each of the comparatives' details,
proffering legitimate, non-discriminatory reasons for each.
At this point, the question becomes whether complainant has established
that the agency's proffered explanation was not the true reason for its
actions, but was merely a pretext for discrimination. In this regard,
complainant argues that the female comparatives were allowed to accrue the
needed one year of Regional Office time by accepting temporary details,
while male employees were required to take permanent reassignments to get
the one year of time. However, there is no evidence of record to support
a finding that the agency had any such policy regarding the manner in
which employees could accrue Regional Office time. Complainant further
argues that pretext is shown by a notice issued by the agency in January
1991, which informed managers of their affirmative duty to assist female
and minority employees, who were under-represented at the agency, to
develop their Individual Development Plans (IDPs). Even construed in
the manner most favorable to complainant, however, the fact that the
agency directed its managers to assist female and minority employees in
the development of their IDPs does not compel a finding that the agency
discriminated against complainant with regard to the reduction in grade
that was incidental to his reassignment.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
July 26, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________________________
Equal Opportunity Specialist Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The record reflects that complainant was granted �save pay.�