01A13926
10-16-2002
Terry L. Smith, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Terry L. Smith v. Department of the Air Force
01A13926
October 16, 2002
.
Terry L. Smith,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A13926
Agency No. EB1M00004
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 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. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Housing Referral Assistant, GS-1101-07 at the agency's
Housing Division, 95th Civil Engineering Group, Air Force Flight Test
Center (AFFTC), Edwards Air Force Base (AFB), California facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on November 30, 1999, alleging that he was discriminated
against on the bases of age (D.O.B. 3/30/51), and disability (hearing
loss) when on November 8, 1999 he received notice that his pay retention
entitlement had been terminated.
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. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that the record showed that complainant's
aircraft maintenance supervisor position was one of several positions
abolished due to Department of Defense manpower reductions which occurred
in 1995.<1> The agency further concluded that the record revealed that
management initiated a Reduction in Force (RIF) in order to place those
employees impacted by the abolishment action. Utilizing RIF procedures,
management was then able to offer complainant continued employment
because of his retention standing based on his civil service tenure,
veterans preference, amount of creditable service, and the scores of
his three previous performance appraisals.
The agency further concluded that complainant accepted the lower grade
position as a housing referral assistant which entitled him to retain
pay as long as the salary of his former WS-11 position exceeded the top
salary range of his new GS-07 position which began in October, 1995.
However, complainant was one of the AFB employees subsequently included
in the Civilian Acquisition Workforce Personnel Demonstration Project
(AWPDP) initiated in 1999. Under this project, the general schedule pay
structure was replaced by a broadband classification and pay system.
As a GS-07, complainant's salary was included in pay band NH-1101-II
that encompassed GS-05 through GS-11 salary ranges. The top range of
the NH-1101-II pay band exceeded complainant's former GS-11 salary.
Therefore, when complainant was placed in the AWPDP under pay band
NH-1101-II, his salary no longer exceeded the top range of the pay band
and his pay retention was terminated.
The agency concluded found that complainant established a prima facie case
of age discrimination and assumed for the purposes of its decision that
complainant established a prima facie case of disability discrimination.
The agency also concluded that management articulated a legitimate,
non-discriminatory reason for the employment action. Specifically,
the project officer (PO) for the implementation of the AWPDP testified
that neither age nor disability were considerations in determining
which employees would participate in the AWPDP or who would have
their retained pay entitlements terminated. PO explained that in the
AWPDP, the general schedule pay structure was replaced by a broadband
classification and pay system, and that as a GS-07, complainant's salary
was included in pay band NH-1101-II that included the �GS grades 5, 7,
9, and 11" salary ranges. PO further explained that the new pay band
�encompassed [complainant's] current pay,� because the top range of
the GS-11 salary exceeded the salary complainant had retained from his
former WS-11 position. PO testified that when complainant was placed
into the AWPDP under pay band NH-1101-II, pay retention was no longer
applicable to complainant's situation because his salary did not exceed
the top range of the pay band. PO explained that it was for this reason
that complainant's pay retention was terminated. PO noted, however,
that those employees on retained pay, whose salaries still exceeded the
top range of their pay bands after entering into the AWPDP did not have
their pay retention entitlement terminated.
The agency also concluded that complainant failed to prove that
the agency's articulated, legitimate non-discriminatory reasons were
pretextual or that he otherwise presented evidence of age or disability
animus. Specifically, the agency noted that complainant claimed that he
lost approximately $5,000 in pay and became ineligible to receive 50%
of future general schedule pay increases as a result of being placed
in the AWPDP. However, the agency concluded that complainant provided
no evidence to support this assertion or to support the finding that
such alleged reduction in pay was based upon his age or disability.
The agency concluded that complainant, instead, focused his arguments to
the RIF where his grade was reduced from a GS-11 to a GS-07, effective
October 25, 1995, which was addressed as background evidence.
The agency also asserts that complainant received no pay reduction as a
result of being moved from the GS-07 pay grade to the NH-1101-II pay band.
Moreover, while complainant was no longer eligible for 50% of any future
general schedule increases, because his eligibility was based on his
retained pay status, he was still eligible for general pay increases
relative to his contributions to the mission of the organization.
On appeal, complainant raises several issues not alleged in his complaint
and fails to address the FAD's conclusion that he failed to provide
evidence of pretext or discriminatory animus. The agency addresses each
of complainant's arguments in its response to complainant's appeal and
requests that we affirm its FAD.
Assuming that complainant established a prima facie case of disability<2>
and age discrimination, we nevertheless, find that complainant
failed to present evidence that more likely than not, the agency's
articulated reasons for its actions were a pretext for discrimination.
In reaching this conclusion, we note that aside from complainant's bare
assertions in his affidavit, there is no supporting evidence of pretext
or discriminatory animus. Moreover, the record as a whole supports the
testimony of PO.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, 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
October 16, 2002
__________________
Date
1 The termination of complainant's former position is not an issue herein.
2 We assume, without deciding herein, that complainant is a qualified
individual with a disability, pursuant to the Rehabilitation Act.