01A42819_r
07-20-2004
Otha B. Brewer, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Otha B. Brewer v. Department of the Air Force
01A42819
July 20, 2004
.
Otha B. Brewer,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A42819
Agency No. 9V1M03144
DECISION
Complainant filed this appeal from the February 24, 2004 agency decision
finding no discrimination.<1>
Complainant, a machinist, alleged that the agency had discriminated
against him on the bases of race (Black), age (D.O.B. April 4, 1947),
and reprisal (prior EEO activity) when: (1) complainant was denied
the opportunity to work overtime from January 13, 2003 to January 18,
2003, and from January 21, 2003 to January 24, 2003; (2) complainant's
supervisor required him to work WG-3417-11 tool grinder duties 99
percent of the time; and (3) complainant was passed over for training
on the new computer numerical controlled (CNC) tool grinder machine on
February 7, 2003.
In its decision, the agency stated that complainant established a prima
facie case of race and reprisal discrimination but failed to establish
a prima facie case of age discrimination. The agency also stated,
however, that it had articulated legitimate, nondiscriminatory reasons for
its actions. The agency indicated that complainant was not offered the
opportunity to work overtime because he worked in the BJ shop and only the
employees in the EJ shop were offered overtime. The agency stated that
complainant was not required to perform tool grinder duties. The agency
noted that although complainant sharpened drill bits and ground reamers,
those duties were consistent with his position. The agency stated further
that the tool grinder position required a higher degree of complexity
than simply modifying tools or making repairs. Regarding training, the
agency stated that complainant had received more on the job training than
anyone else in the shop and had already received training on a CNC tool
grinder machine. The agency further stated that when the new CNC tool
grinder machine was received, management decided to train employees who
had not been trained on the machine previously.
In his affidavit, complainant stated that he was on the overtime roster
as a machinist but was not offered overtime in January 2003, although
the overtime work offered was work normally performed by machinists.
He stated that his supervisor supervised two shops, BJ and EJ and that
although management allegedly ran separate overtime rosters for the two
shops, employees were often assigned overtime between the two shops.
Complainant stated that when he asked his supervisor why he had not been
offered overtime, his supervisor told him that he had the wrong skill
codes and was on the wrong overtime roster. Complainant also stated
that after he filed his complaint, management established one overtime
roster for both shops.
Concerning his classification, complainant stated that since 1992,
he has been working as a tool grinder, although he is classified as a
machinist. He further stated that he complained to a classifier, who
has since retired, and that the classifier agreed that complainant's
position was wrongly classified. Complainant stated that whenever he
complained of this matter to management, management has done nothing.
Complainant also stated that in March 2003, his supervisor told him
that because he was complaining about his job classification that he
(supervisor) would assign complainant only machinist duties.
Regarding training, complainant stated that a new tool grinder was
acquired in January 2003. He stated further that management had the
ability to have three employees trained by the factory representative.
Complainant stated that Person A, the acting supervisor at the time,
told him that he could not allow complainant to attend the training
because management was mad at complainant. Complainant further stated
that one of the two machinists did not touch the new grinder until after
complainant filed his complaint so as to make it appear that management
had trained the correct employees.
The affidavit of complainant's supervisor, a machinist foreman, is
contained in the record. Therein, complainant's supervisor stated
that he supervised the EJ and BJ shops, that he had two overtime
rosters for both shops, and that when he became supervisor, separate
overtime rosters were already established and he continued the practice.
Complainant's supervisor also stated that when he became supervisor,
each shop had its own workload. He indicated that the EJ shop worked
on exciter boxes and manifolds as its regular workload. When the
overtime work came up in January 2003, complainant's supervisor stated
that he assigned employees from the EJ shop. Complainant's supervisor
also stated that he would have used the BJ overtime roster if the
work was usually performed by the BJ shop. He stated that he did not
assign employees between shops unless one of the shops ran out of work.
Complainant's supervisor noted that he did not mix the overtime rosters.
He further stated that in June 2003, he established one overtime roster
for both shops to enhance efficiency and productivity and the change
led him to conduct cross training between employees of both shops.
Complainant's supervisor stated in his affidavit that when he became
complainant's supervisor, complainant was sharpening and grinding reamers,
drill bits, and valve bodies all the time. He stated that complainant
also did a lot of work on the �centerless� grinder. He stated that the
work complainant was performing was work that a machinist would perform
and was included in complainant's position description. Complainant's
supervisor stated that complainant never performed work to the level of
complexity that a tool grinder would have to perform. He stated that a
tool grinder fabricates and builds tools and complainant merely sharpens
tools, duties consistent with his machinist position. He stated that
if complainant was working at a higher grade level, he would work to
insure that the matter was addressed.
Regarding the disputed training, complainant's supervisor stated that when
the new tool grinder machine was received, the manufacturer offered only
three training slots. He selected one tool grinder and two machinists
for the slots. Complainant's supervisor stated that when the agency
had previously received a CNC Huffman grinder, four employees, including
complainant, were trained. Complainant's supervisor stated that in order
to be fair, he wanted to send three different employees to the training
who had not received training on the Huffman grinder. He also stated
that complainant has received more training on the various CNC grinding
machines in the shop than any other employee. He stated that none of
the trainees ever told him that they did not want the training.
The record contains the affidavit of the chief of the Tooling, Machining,
and CNC unit who supervises complainant's supervisor. The chief stated
that the overtime work in January 2003, was work normally assigned to
the EJ shop. He stated that in June 2003, he directed complainant's
supervisor to run a single overtime roster for both his shops because
he believed that the employees would fare better if each shop could
perform the work of the other. The chief denied that complainant
performed tool grinder work 99 percent of the time. He stated that
complainant spent the majority of his time grinding tool bits, including
drills, end mills, reamers and other types of machine cutting tools.
He further stated that this activity was not tool grinder work but was
consistent with complainant's job description. The chief also stated
that when complainant's supervisor tried to assign complainant to other
work, complainant would complain so consequently complainant spends
the majority of his time grinding tool bits. The chief stated that
tool grinders perform work that differs from the work that complainant
performs and is more complex.
Also contained in the record is the affidavit of the chief of the
Manufacture and Repair Section. (MRS). The MRS chief stated that he
reviewed the machinist position to determine if complainant was working
within his position description and concluded that the work complainant
was performing was consistent with his position description. The MRS
chief also stated that complainant sharpened drill bits and similar
cutting tools but that these activities were a part of complainant's
position description. He noted that complainant, unlike the tool
grinders, did not fabricate or build tools, run the computer-run numerical
controlled grinder machines, program those machines or prepare the
software to grind a specific part. The chief stated that just operating
a machine was not tool grinder work.
The record contains the affidavit of a supervisory human resources
specialist who stated that she reviewed complainant's position description
and that of the tool grinder. The specialist stated that the tool
grinder positions were mixed. She also stated that machinists perform
machining 75 percent of the time and performed tool grinding 25 percent of
the time, while the tool grinder performs tool grinding 75 percent of the
time and machining work 25 percent of the time. The specialist stated
that tool grinders perform more complex work, including programming
the machines while the machinist uses machines programmed by others.
She also noted that the tool grinder sets up and uses more complex
measuring equipment than the machinist.
The record contains the affidavit of the machinist who attended the
disputed training. She stated that at first she declined the training
because she had no experience as a tool grinder and because the machine
was very complex. She later discussed the matter with Person A, the
acting supervisor, who persuaded her to attend the training, telling her
that some of the tool grinder positions would be coming vacant and the
training would assist her in qualifying for a promotion. The machinist
stated that complainant had performed tool grinder duties for the 2.5
years that she worked with him.
Also contained in the record are the position descriptions for the
machinist and the tool grinder. The position description for the
machinist reflects that the purpose of the position is to set up and
operate specialized grinding machines and to manufacture, modify and
repair aircraft or engine parts and equipment and a variety of standard
tools, gages, and fixtures. Duties and responsibilities include
receiving orders to manufacture, modify and repair parts, equipment,
tools, and fixtures, through the use of a variety of grinding machines;
manufacturing, modifying, sharpening and repairing tools such as drills,
reamers, mill cutters, and standard tools using a variety of grinding
machines; and using a specialized grinding machine. The purpose of the
tool grinder position is to manufacture, repair, modify and inspect
aircraft, engine and accessory parts, fixtures, gages, dies, tools,
jigs, and plant equipment parts through the use of grinding machines and
measurement equipment, with occasional design of fixtures, gages, dies,
tools, and jigs. A machinist could set up and operate all conventional
precision grinding machine tools and their attachments and use specialized
grinding machine tools which require extensive or involved mathematical
computations in their setup or operating procedures. Duties of the tool
grinder also include setting up and programming of CNC precision grinding
machine tools and occasional operation of standard machine tools such as
lathes, drills, and mills, using specialized measuring equipment, and the
set up and use of a variety of standard machine shop measuring equipment.
As an initial matter we note that, because this is an appeal from
an agency decision issued without a hearing pursuant to 29 C.F.R. �
1614.110(b), the agency's decision is subject to de novo review by
the Commission. See 29 C.F.R. � 1614.405(a). 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). See also Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases). For complainant to prevail, he must first establish a prima
facie case 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.
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.
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.
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 its action, the
factual inquiry can proceed directly to the third step of the McDonnell
Douglas analysis to the ultimate issue of whether complainant has shown by
a preponderance of the evidence that the agency's actions were motivated
by discrimination. See 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).
Assuming arguendo that complainant has established a prima facie case
of race, age, and reprisal discrimination, the Commission finds that
the agency has articulated legitimate, nondiscriminatory reasons for
its actions. The record reveals that overtime was not offered in
complainant's shop; that while complainant may perform tool grinder
duties, his duties are largely that of a machinist; and that there
were only three slots for training and none of the three trainees who
received training had been trained on a CNC machine before although
complainant had. The Commission further finds 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.
Accordingly, the agency's decision 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
July 20, 2004
__________________
Date
1Complainant admits not requesting a hearing
within the time limits and has not provided an adequate reason for
extending that time frame.