0120082750
05-05-2009
Reginald Jones, Complainant, v. Paul Prouty, Acting Administrator, General Services Administration, Agency.
Reginald Jones,
Complainant,
v.
Paul Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120082750
Agency No. GSA-06R2PBSRJ16
Hearing No. 520-2007-00077X
DECISION
On May 31, 2008, complainant filed an appeal from the agency's May 2,
2008 final order concerning his equal employment opportunity (EEO)
complaint claiming unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, 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 deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
During the period at issue, complainant held a wage-grade position, as
a Mechanical Work Inspector, with the agency's Public Buildings Service
(PBS), in the Northeast and Caribbean Region (Region 2). On February
28, 2003, complainant learned that wage-grade positions, including
his position, were to be abolished. Believing that the separation was
discriminatory, complainant contacted an agency EEO office. Informal
efforts to resolve complainant's concerns were unsuccessful. On June 10,
2003, complainant filed a formal complaint based on race and age.1
Weeks later, another wage-grade employee, Vincent Guerriero, filed
a formal complaint on the same matter. This employee, a Region 2
custodian/gardener with PBS, claimed discrimination on the bases of
age and disability.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the matter was assigned to an AJ. In March 2007,
the agency requested the consolidation of complainant's complaint with
Vincent Guerriero's complaint.
On April 11, 2007, before ruling on the consolidation request, the AJ
issued a decision regarding complainant's claim of racial discrimination.
The AJ determined that summary judgment was appropriate, with respect to
the race portion of the formal complaint, because there were no genuine
issues of material fact. According to the AJ, complainant was unable
to establish a prima facie case of racial discrimination. Eight of the
eighteen people in the first group subjected to the conversion, of which
complainant was a member, were outside of complainant's protected class
(i.e. Caucasian and Hispanic). The AJ found that complainant failed to
show that he was treated differently due to his race.
Thereafter, on May 10, 2007, the AJ consolidated complainant's remaining
basis (age) Vincent Guerriero's case2 "solely for the purposes of
remaining discovery and trial." The agency's motion for a decision
without a hearing was denied, and hearing was held on January 24, 2008
and February 8, 2008. In her decision, issued on April 24, 2008, the
AJ found no discrimination.3
As an initial matter, the AJ determined that complainant presented a
prima facie case of age discrimination. All the positions selected to be
abolished and performed by private contractors were held by individuals
over the age of forty.
The AJ also found that the agency proffered legitimate, non-discriminatory
reasons for its actions. Agency management witnesses testified that
OMB, in response to the President's Management Agenda (PMA) requiring
agencies to reduce their full-time work force by 5% in 2002 and 15% in
2003, decided to focus on positions that "are not strictly governmental"
to convert to private sector. An agency official, with the assistance
of hired consultants, determined that the trade and craft positions were
best suited for such conversions. They reasoned that these positions
had already been subject to reductions via attrition, and were "highly
commercial" in nature and therefore more easily transferred to private
contractors. Additionally, the agency relied upon cost data which
indicated that the conversion of those functions would result in savings.
The AJ observed that later studies revealed that it was not always
a cost savings to send the functions to contractors. However, the
studies themselves were costly, so the agency was permitted to directly
convert the first group of positions without such studies. Complainant
was in this first conversion. Thereafter, however, OMB issued revised
instructions which prohibited direct conversions. The agency was required
to first conduct a study before selecting positions for abolishment, to
ensure that they were more expensive than when performed by the private
sector. Such studies were conducted for the second and third group of
positions, which prevented those individuals from losing their jobs.
In an attempt to establish pretext, the complainant argued that the
fact that the second and third groups did not lose their positions
was indicative of age discrimination. The AJ disagreed, noting that
individuals in those later groups were not, as a whole, younger than
complainant's (first) group.
After finding no case of disparate treatment due to complainant's
age, the AJ conducted an analysis of the record for disparate impact.
Complainant established that all of the forty-four positions selected
for conversion, over three years, were held by individuals over the age
of forty. However, the AJ determined that "technically" complainant
failed to provide sufficient statistical data to support a prima facie
case of disparate impact. The AJ found that complainant did not
submit statistical evidence to show, for comparative purposes, that
others outside the protected category (i.e. employees under the age of
forty) could have been affected by the agency's neutral action. Moreover,
even assuming that complainant had established a prima facie case, the
AJ concluded that the agency presented reasonable factors other than age
for its action. As noted above, these positions were selected due to the
ease of simply accelerating the attrition process that was already being
utilized, the decision fit with the agency's business strategy, and cost
data at the time indicated a savings if such functions were outsourced.
Finally, the AJ addressed complainant's assertions that the depositions
of two witnesses were taken in bad faith and therefore the agency should
bear the cost. According to the AJ, there was no evidence of bad faith
and denied the complainant's request.
On May 2, 2008, the agency subsequently issued a final order adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, complainant challenges the AJ's conclusion that a legitimate,
non-discriminatory reasons were provided by the agency. Specifically,
complainant argues that his position is not "commercial" and should not
have been targeted for conversion. Instead, his function continues to be
performed by agency employees. Complainant believes that the fact that
the employees in the second and third groups were never terminated, the
remaining conversions were not completed, was evidence of discrimination.
Regarding how the individuals were selected for the first group,
complainant argues that the list used "was biased against older employees"
and "there was no rational" regarding the selection of individuals.
Complainant also asserts that a cost study should have been conducted
on his group, because the OPM revision (prohibiting direct conversions)
occurred prior to the effective date of complainant's removal. Finally,
complainant contends that "enormous pressure" was put on him to accept
the buy out, and he was never informed of his statutory protections.
In response, the agency reiterates the AJ's reasoning that legitimate,
non-discriminatory reasons were presented for complainant's separation. 4
The agency asserts that the determination to outsource the trade
and crafts positions was due OMB's implementation of the PMA and in
furtherance of a prior agency decision to reduce or eliminate those
positions. The agency asserts that it focused on positions, and not the
characteristics of the employees in those positions, in determining what
functions to outsource. The Region devised a three-year plan to achieve
the agency's goals. Those trade and craft positions that were most easily
convertible or absorbed into existing contracts were assigned to the
first group to be affected. PBS, complainant's division, simply selected
the positions that matched that criteria in grade order (from lowest
to highest) and stopped after reaching the required eighteen positions.
Complainant's position, performing the gardening function, was part of a
janitorial contract and therefore was not considered a necessary separate
agency position. According to the agency, its determination to remove the
trade and crafts positions was a lawful business decision. The agency
requests that the Commission affirm its finding of no discrimination,
arguing that complainant has not established that the AJ's decision is
unsupported by substantial evidence.
ANALYSIS AND FINDINGS
Race
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.
As an initial matter, the Commission finds that the AJ properly issued
a decision without a hearing with respect to complainant's claim of
racial discrimination. There is no genuine issue of material fact. 5
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell
Douglas Corporation v. Green. 411 U.S. 792 (1973). For complainant to
prevail, she 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. Id. 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
action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, 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).
The Commission agrees that complainant has failed to establish a prima
facie case of racial discrimination. The record reveals that many of
the individuals also affected by the agency's action were outside of
complainant's protected class. In addition to African-American employees,
Caucasians and Hispanic employees were in the group selected for buy-out.
The circumstances surrounding the conversion of complainant's position
do not give rise to an inference of discrimination based on race.
Moreover, even assuming arguendo that a prima facie case was established,
the agency has presented a non-discriminatory reason for its actions.
As noted above, the agency states that its decision to outsource
complainant's position was taken as part of the PMA requirement that
the workforce be reduced. Further, because complainant's position was
one that had been subject to attrition and was not considered strictly
governmental, it was one of the first selected for abolishment.
Age
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Disparate Treatment Claim
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
While complainant alleges that the agency's action in abolishing
his position was motivated by his age, the agency contends that
it was required to reduce its full-time positions and outsource
non-governmental functions as part of OPM's implementation of the PSA.
In an attempt to establish pretext, complainant argues that the basis
of age is simply equal to wage-grade employees, and that by focusing on
wage-grade positions, the agency committed age discrimination. Moreover,
complainant challenges the agency's decision, asserting that other options
were available (i.e. spread the conversion of forty-four positions over
the entire agency). Complainant also argues that the cost data relied
upon by the agency was later was shown to be flawed.
The Commission, however, is not persuaded that the AJ's determination of
no discrimination was not supported by substantial evidence of record.
On appeal, complainant has not established that record fails to support
the AJ's conclusion that complainant did not prove, by a preponderance of
the evidence, that the agency's actions were motivated by discriminatory
animus based on complainant's age.
Disparate Impact Claim
As noted above, the AJ also evaluated complainant's claim of
discrimination under the theory of disparate impact. The Commission
has held that a claim of disparate impact discrimination may apply
under the ADEA against federal government agency employers. Witkowsky
v. Department of the Interior, EEOC Petition No. 03970122 (January
30, 1998). In general, to establish a prima facie case of disparate
impact, a complainant must show that an agency practice or policy,
while neutral on its face, disproportionately impacted members of the
protected class through a presentation of statistical evidence that
demonstrates a statistical disparity that is linked to the challenged
practice or policy. Watson v. Fort Worth Bank and Trust, 487 U.S. 977,
994 (1988) (a complainant must present statistical evidence of a kind and
degree sufficient to show that the practice in question has caused the
exclusion). Specifically, a complainant must: (1) identify the specific
policy or practice challenged;. (2) show statistical disparities; and
(3) show that the disparity is linked to the challenged practice or
policy. Id. The burden is on a complainant to show that the facially
neutral standard in question affects those individuals within the
protected group in a significantly discriminatory pattern. Dothard
v. Rawlinson, 433 U.S. 321, 329 (1977); see also Kimble v. Department
of Commerce, EEOC Request No. 05950838 (June 20, 1997). If complainant
successfully establishes a prima facie case, the burden is then on the
agency to show the adverse impact was attributable to a "reasonable"
factor other than age. Smith v. City of Jackson, Miss., 544 U.S. 228,
239, 243 (2005) (the reasonableness inquiry does not ask "whether there
are other ways for the employer to achieve its goals that do not result
in a disparate impact on a protected class").
The Commission agrees with the AJ's finding that complainant failed to
establish a prima facie case of disparate impact. We find complainant
did not establish statistical disparities, in that there was no evidence
that employees under the age of forty could have been affected by the
neutral action. Moreover, even assuming that a prima facie case was
presented, we find that the agency has presented several "reasonable"
factors other than age for its action.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the agency's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
May 5, 2009
__________________
Date
1 Before filing an individual EEO complaint, complainant was the
class agent for a proposed class complaint. In July 2004, an AJ denied
certification of the class. Thereafter, complainant filed an appeal from
the agency's final order implementing the AJ's decision. The Commission
affirmed the rejection of the class. However, the Commission reversed
the agency's rejection of complainant's individual complaint. The
individual complaint was remanded to the agency for further processing.
Jones v. General Services Administration, EEOC Appeal No. 01A50310
(June 1, 2006).
2 As with the instant case, the AJ issued a decision dispensing with
Vincent Guerriero's claim of discrimination on the basis of disability,
without a hearing. Consequently, when the cases of complainant and Vincent
Guerriero were consolidated only the common basis of age remained.
3 While the instant case was consolidated with the Guerriero case at
hearing and the AJ issued one decision, separate appeals were filed
by the complainants. The Guerriero case has been assigned Appeal
No. 0120082738.
4 The agency submitted one response to both complainant's appeal as well
as Vincent Guerriero's appeal.
5 We note that the decision was inaccurately titled "Partial Dismissal".
The AJ did not procedurally dismiss the claim, but rather addressed the
merits and found no discrimination.
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0120082750
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082750