01A14371
03-04-2003
Sherman R. Stephens, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Sherman R. Stephens v. Department of the Air Force
01A14371
March 4, 2003
.
Sherman R. Stephens,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A14371
Agency No. AR000010271
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant held
four positions. The record reflects that the appraisal period had
just begun when, in April 1998, complainant was detailed to the LANTIRN
System Readiness Branch (LYTS), as a GS-0346-14, Logistics Management
Officer, at the Warner Robins Air Force Base (AFB) in Georgia. During
the detail, complainant had a first line supervisor (S1: American,
male, prior protected activity) and a second line supervisor (S2:
Caucasian, female, no known prior protected activity). On August 9,
1998, complainant returned to the position he had been detailed from,
a GS-0346-13, Supervisory Logistics Management Specialist, in the
Navigation POD Section (LYTSN).
The record also reveals that sometime after August 9, 1998, but before
January 1999, complainant was reassigned as a GS-0346-13, Supervisory
Logistics Management Specialist, Foreign Military Sales Support (LYTSS).
In regard to his permanent position in LYTSS, complainant had a first line
supervisor (S3: American, male, prior protected activity not identified),
and S1 was his second line supervisor.
In December 1998 or January 1999, complainant entered into an agreement
with the former director (D1: American, male, prior protected activity)
to serve on a detail with an unclassified set of duties. The record
reflects that the Lieutenant Colonel (LC1: American, male, no known
prior protected activity) would be his supervisor. The record also
reflects that agreement was on the condition that the duties would be
at the GS-13 level. The duties and responsibilities were subsequently
classified and complainant was officially detailed as a GS-0301-12,
Resources Management Specialist, effective March 14, 1999, and not to
exceed July 11, 1999. Complainant contends that a representative (HR1:
American, female, prior protected activity) from the personnel office
told him that the position was a GS-12 because it was non-supervisory.
Complainant also contends that D1 could have taken action to ensure the
detail would be a GS-13, but would not.
On June 3, 1999, complainant sought EEO counseling. Subsequently,
complainant filed a formal complaint on September 13, 1999, alleging
that he was discriminated against on the bases of race (Hispanic),
national origin (Puerto Rican), sex (male), and reprisal for prior EEO
activity when:
(1) on April 23, 1999, he became aware that his detail was at the GS-12
grade level;
on May 14, 1999, S3 rated complainant on his 1998-1999 Civilian
Performance and Promotion Appraisal (CPPA); and,
on May 14, 1999, he received a numerical score of 71 with an overall
rating �Excellent� on his 1998-1999 CPPA.
On August 10, 1999, complainant sought EEO counseling. Subsequently,
complainant filed a formal complaint on December 6, 1999, alleging that
he was discriminated against on the basis of reprisal for prior EEO
activity when on July 30, 1999, S3 directed him to vacate his office
because an Air Force Major was moving into the office the following week.
On August 26, 1999, complainant sought EEO counseling. Subsequently,
complainant filed a formal complaint on December 6, 1999, alleging that
he was discriminated against on the basis of reprisal for prior EEO
activity when on August 23 and 25, 1999, he was denied an opportunity
to attend a job related conference. On January 10, 2000, complainant
amended his complaint. Specifically, complainant alleged that he was
discriminated against when on August 3, 1999, he was removed from the
Team Lead position on the Sacramento Move Team.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD dated May 31, 2001, the agency concluded that complainant
established a prima facie case of national origin, sex, and/or reprisal
discrimination in regard to being detailed as a GS-12. The FAD also
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The FAD further concluded that complainant
did not establish by preponderant evidence that the agency's actions,
with respect to the GS-12 detail, were motivated by discriminatory animus
and/or retaliatory motive.
In regard to the second and third claims, the agency found that
complainant failed to establish by a preponderance of the evidence that
the performance appraisal at issue was motivated by discriminatory animus.
Concerning the fourth claim, the FAD concluded that, even assuming
arguendo, complainant established a prima facie case of reprisal
discrimination, the agency articulated legitimate, nondiscriminatory
reasons for its actions. The FAD also found that, complainant's testimony
regarding his subjective belief that his supervisors' actions were the
result of discriminatory animus, standing alone, was insufficient to
prove pretext.
In regard to the fifth claim, the agency concluded that complainant
established a prima facie case of reprisal. Specifically, the agency
found that: (1) complainant engaged in prior protected activity;
(2) management was aware of this activity; (3) he was the subject of
an adverse employment action when he was removed from the Team Lead
position; and, (4) there was a causal connection between the protected
activity and the adverse employment action. The FAD also found that
the agency articulated legitimate, nondiscriminatory reasons for its
action and complainant failed to show that these reasons were a pretext
for discrimination.
In regard to the sixth, and final claim, the FAD concluded that
complainant established a prima facie case of national origin and
reprisal discrimination. The FAD also found that the agency articulated
legitimate, nondiscriminatory reasons for not approving complainant's
requests for TDY travel. The agency further found that complainant did
not establish by preponderant evidence that management's actions in not
sending him to the conference were motivated by unlawful discrimination.
On appeal, complainant contends, among other things, that D1 made
no attempt to have his detail position classified at the GS-13 level.
Complainant also contends, that although the lowered grade level did not
affect his pay, his promotion eligibility was affected. Complainant
further contends that there were many GS-13 positions that were not
supervisory in nature. In response, the agency requests that we affirm
its FAD.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Claim 1 - Detail to a Lower-Graded Position
The Commission agrees with the FAD that complainant established a prima
facie case of race, national origin, sex, and/or reprisal discrimination
regarding being detailed as a GS-12. Specifically, the record establishes
that similarly situated individuals, not within complainant's protected
groups, were treated more favorably under similar circumstances.
The record also establishes that management was aware of complainant's
prior protected activity.
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for keeping complainant's detail at the
GS-12 level. In contrast to complainant, the record reflects that all
of the individuals who had previously served on this particular detail
at the GS-13 level, continued to concurrently perform the duties of
their permanent positions. The Commission notes that the person who
classified the detail did not know complainant's race, national origin
or that he had engaged in prior protected activity. The record reflects
that the agency's personnel office employees who audited the duties in
question, determined them to be at the GS-12 level because there were
no supervisory duties assigned.
The Commission also notes that complainant continued to receive his
GS-13 salary. Because we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions, complainant must now show
that the reasons were merely a pretext for discriminatory animus and/or
retaliatory motive. The Commission finds that complainant failed to
present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination.
Claims 2 and 3 - CPPA Rating
The Commission agrees with the FAD's conclusion that complainant failed
to establish the his CPPA rating was the result of unlawful employment
discrimination. Specifically, we find that complainant did not present
sufficient evidence to show that his rating of �Excellent� was based on
his race, national origin, sex, and/or reprisal. Complainant contends
that, it is inappropriate for S3 to be his rating official because he
supervised S3 for four months during the rating period. Even if it is
inappropriate, that fact alone, does not violate Title VII.
The record also establishes that complainant's ratings over a three year
period varied only slightly. In point of fact, for the two prior rating
periods in 1997 and 1998, complainant received an �Excellent� rating.
The record further establishes that S3 testified that complainant
delegated tasks that he should not have. The record reflects that
management had to engage in follow-up discussions with complainant to
ensure some tasks were completed. In addition, the record shows that
complainant did not always complete projects in a timely manner.
Under these circumstance, we find that the agency articulated legitimate,
nondiscriminatory reasons for giving complainant a rating of �Excellent.�
We also find that complainant did not produce sufficient evidence to
show that the agency's reasons were a pretext for discriminatory animus
and/or retaliatory motive. In reaching this conclusion, we note that only
one of the individuals named by complainant qualified as a comparative
employee. However, other than the fact that the comparative employee
was not Hispanic, complainant provides no evidence that he received a
lower rating because he was Hispanic.
Claim 4 - Request to Vacate Office
The Commission agrees with the FAD's conclusion that, even assuming,
arguendo, complainant established a prima facie case of race, national
origin, sex, and/or reprisal discrimination, the agency articulated
legitimate, nondiscriminatory reasons for its actions. In particular,
the record evidence shows that S3 had been told that complainant accepted
a new position outside of the branch. In light of that, S3 testified that
he asked complainant to vacate the office quickly because his replacement
was due to arrive the following Monday. The Commission notes that
when complainant explained that he had not received an official offer,
S3 told him that he did not have to vacate the office. The Commission
also concludes that complainant did not provide any evidence that the
reasons articulated by the agency were a pretext for discriminatory
animus and/or retaliatory motive.
Claim 5 - Removal from the Sacramento Move Team
The Commission agrees with the FAD's conclusion that complainant
established a prima facie case of reprisal discrimination. Specifically,
the record reflects that: (1) complainant engaged in prior protected
activity; (2) management was aware of the prior protected activity; (3)
complainant was removed from the team; and, (4) there is an inference of
a causal connection due to the length of time between the prior protected
activity and the adverse employment action.
We also conclude that the agency articulated legitimate, nondiscriminatory
reasons for removing complainant from the team. In particular, we find
that complainant was removed from the team because a permanent GS-13
position became available and complainant would no longer be supervised
by S1. The Commission further concludes that complainant did not provide
any evidence that the reasons articulated by the agency were a pretext
for retaliatory motive.
Claim 6 - Denial of Training Requests
The Commission agrees with the FAD's conclusion that complainant
established a prima facie case of race, national origin and/or reprisal
discrimination. We also conclude that the agency articulated legitimate,
nondiscriminatory reasons for not approving complainant's request.
In particular, the record reflects that complainant had a tasking due
soon and he was already scheduled for temporary duty travel the week after
the training he requested to attend. We also note that S3 believed that
because the conference focused on engineering it would be more relevant
for a person from the engineering section to attend.
Complainant contends that the agency's reasons were a pretext for unlawful
employment discrimination because when the engineer that was selected
to go declined, the agency's changed its reasons why complainant could
not attend. We are not persuaded.
Based on the foregoing, and after a careful review of the record,
including complainant's contentions, the agency's response, and arguments
and evidence not specifically addressed in this decision, we affirm
the FAD.
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 4, 2003
__________________
Date