0220150002
12-03-2015
Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Fredrick A.,1
Grievant,
v.
Julian Castro,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0220150002
DECISION
On October 21, 2014, Grievant filed an appeal from the Agency's October 14, 2014, Step 2 decision concerning his grievance alleging 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.
BACKGROUND
At the time of events giving rise to this grievance, Grievant was employed with the Agency in the position of Summer Employment as a Management Support Clerk, GS-2, at the Agency's facility in Santa Ana, California.
The record indicated that Grievant began his employment on June 21, 2010. From June 2010, Grievant was issued paperwork ("SF-50") changing his status from clerk to student temporary employment program (STEP). Grievant was employed with the Agency in this status while obtaining his bachelor's degree.
On July 31, 2011, Grievant was promoted to the GS-3 level and received an extension to the STEP program through September 30, 2012. On August 1, 2011, Agency management asked Grievant to provide his school fall schedule and current transcript. Grievant informed the Agency that he would receive his Bachelor's of Arts diploma in September 2011. On February 7, 2012, management asked for a copy of his diploma. Grievant complied.
The "Pathways Internship Program" replaced the STEP program effective on July 10, 2012. On September 23, 2012, the Agency issued a new SF-50 placing Grievant under the Pathways program, with a trial period not to exceed September 30, 2012. On December 15, 2013, the Agency issued another SF-50 which noted under remarks "congratulations on your promotion," noting that Grievant was being promoted from a grade of GS-3 to GS-7.
On August 26, 2014, Grievant filed his Step 1 grievance alleging that the Agency discriminated against him on the bases of race (Caucasian) and sex (male) when he was not immediately converted to a career ladder position based on his receipt of his diploma in September 2011. He indicated that due to discrimination, the Agency's error/negligence resulted in his:
(1) Being assigned to a temporary non-tenured position with no possibility of upward mobility;
(2) Being placed on a "special program" outside of Office of Personnel Management (OPM) policy with no possibility of upward mobility;
(3) Not being informed of and, even though the Agency made a promise, was not converted to a permanent upward mobility position; and,
(4) Losing of thousands of dollars in pay.
Grievant stated in his Step 1 grievance that the reason he asserted discrimination was based on the "two other STEP cohorts had their conversions processed appropriately based on their gender (female) and race (African-American) due to the connection of one of the STEP candidates having a relative who behind back channels insured that her niece and cohort were taken care of in an expedited process by [Agency officials]."
On August 12, 2014, the Agency issued its Step 1 grievance decision. The decision dismissed the matter finding that Grievant had filed the matter in an untimely manner. As such, the decision did not address Grievant's claim of unlawful discrimination.
On August 26, 2014, Grievant filed his Step 2 grievance. In it, he argued that he was not aware of the alleged discrimination until April 24, 2014, when he was informed that his December 15, 2013 promotion was based on receipt of his Bachelor's degree. In addition, Grievant indicated that the Step 1 decision failed to address his claim of discrimination and noted that the comparators got their positions due to nepotism.
On October 14, 2014, the Agency issued its Step 2 decision again dismissing the matter for untimely raising the matter in the grievance process. The decision then addressed the merits of the grievance. The decision found that the other STEP employees were not comparators. Further, the decision determined that Grievant was converted to the Pathways program in December 2012, which was within the allotted six-month time frame as required by OPM. The Agency held that following Grievant's completion of the requirements, it properly converted him to a permanent position.
This appeal followed. On appeal, Grievant indicated that, following meeting with the Agency's EEO office, he decided to file a Step 1 grievance. He stated that he filed this appeal and asserted that he provided evidence that he had been discriminated against by the Agency.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a Grievant may appeal to the Commission from a final decision of the Agency, the Arbitrator, or the Federal Labor Relations Authority on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Grievant 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. 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). To ultimately prevail, Grievant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
The elements of the prima facie case are determined by the individual circumstances of each case and the bases of discrimination alleged; but regardless of the specific action at issue, Grievant may establish a prima facie case by demonstrating: 1) that he is a member of a protected group; 2) that he is similarly situated to employees outside of his protected group; 3) and that he was treated differently than those employees. Potter v. Goodwill Industries of Cleveland, Inc., 518 F.2d 864, 865 (6th Cir. 1975).
In the case at hand, we find that Grievant did not establish a prima facie case of discrimination. He failed to produce any evidence to show that he was similarly situated to employees outside of his race and/or sex and that he was treated differently. He merely asserted, without evidence, that "STEP cohorts" outside of his protected classes were treated better. Furthermore, in his grievances, Grievant argued that nepotism was the reason for the comparators permanent Agency assignments, rather than their race and/or sex. Therefore, we conclude that Grievant has not established that he was subjected to discrimination based on his race and/or sex.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's Step 2 grievance decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
The Commission may, in its discretion, reconsider the decision in this case if the Grievant 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), at Chap. 9 � VII.B (Aug. 5, 2015). 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).
GRIEVANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Grievant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
December 3, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Grievant's name when the decision is published to non-parties and the Commission's website.
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