03a10069
07-13-2001
Alan E. Redd, Petitioner, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency,. Petition No. 03A10069 MSPB No. SF-0351-01-0063-I-1
Alan E. Redd v. Dept. of the Air Force
03A10069
July 13, 2001
.
Alan E. Redd,
Petitioner,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency,.
Petition No. 03A10069
MSPB No. SF-0351-01-0063-I-1
DECISION
Alan E. Redd. (petitioner) filed a petition with the Equal Employment
Opportunity Commission (the Commission) for review of the Final Order
of the Merit Systems Protection Board (MSPB) concerning allegations
of 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 petition is governed by the provisions of the Civil Service Reform
Act of 1978 and EEOC Regulations, 29 C.F.R. �1614.303 et seq. The MSPB
found that the Department of the Air Force (agency) had not engaged in
discrimination as alleged by petitioner. For the reasons that follow,
the Commission concurs with the decision of the MSPB.
The record indicates that petitioner, an Automotive Worker, WG-5823-08
was removed from his position as a result of a reduction in force
(RIF) effective Spetember 29, 2000. Petitioner filed an appeal of
his removal to the MSPB, and initially did not raise any claims of
discrimination. Thereafter, petitioner amended his appeal, asserting
that he was treated differently than others because of his age and race
(Caucasian) in that others were retained after the RIF. Following a
hearing, the MSPB Administrative Judge (AJ) issued an initial decision
upholding the agency's decision to remove petitioner. The AJ found that
the agency followed RIF procedures and that petitioner did not dispute
the agency's reasons for the RIF. The AJ found petitioner was placed
in the proper retention group and petitioner conceded that the agency
properly determined his competitive area and skill.
Petitioner specifically argued that he should have been placed in a
WG-7 Packer position or in a Motor Vehicle Operator (MVO) position.
The AJ reviewed petitioner's contentions that he was qualified as
a Packer based on his experience as a warehouseman, stock handler,
a materials tester inspector, and a gas detection worker, as well as a
two month detail to a Packer position in 1972. Relying on the position
descriptions of the previous positions held by petitioner as well as that
of the Packer position, the AJ found that the agency made a reasonable
determination that petitioner did not have the �capacity, adaptability,
and special skills� needed for the Packer position. The AJ, in lengthy
detail, explained the differences between what was expected of the Packer
position and the functions of the positions held by petitioner. The AJ
noted that it was not unreasonable for the agency to have someone who
was qualified for the position be placed into it and that they did not
have to put an unqualified person into the position. Lastly, petitioner
argued that the person who held the position (LM, a Hispanic employee)
did not have to qualify for the position when she was hired. The record
indicates that the agency considered LM to be qualified when she was
placed in the position in 1998 - which occurred two years before the RIF
occurred. The AJ noted that LM was properly credited by the agency with
more experience as a Packer than petitioner, given her work experience.
With respect to the MVO position, the petitioner argued that the RIF
was manipulated to protect another employee (LW, a younger employee)
from being let go during the RIF. The record indicates that LW, who
was employed as a MVO prior to the RIF, was offered a position as a
secretary which he accepted. However, LW never worked as a secretary,
rather he was asked to continue MVO duties and was detailed to an MVO
position effective October 22, 2000. Petitioner alleged he should have
been allowed to compete for the new MVO position. The AJ noted that LW
was qualified for the secretary position and that petitioner did not
allege that he also was qualified as a secretary. Further, there was no
evidence that LW's detail was illegitimate, noting that an agency may
detail someone to fill a temporary workload need.
In addressing petitioner's claims of age and race discrimination, the
AJ found that petitioner failed to demonstrate that the agency's reason
for its actions was pretextual. The AJ noted that petitioner's claims
were contradictory in that petitioner argued that LM's selection was
discriminatory based on race, and she was 14 years older than petitioner,
and that LW's selection was discriminatory based on age while LW was
the same race as petitioner.
The Commission must determine whether the decision of the Board with
respect to the allegations of discrimination based on age and race
constitutes a correct interpretation of any applicable law, rule,
regulation or policy directive and is supported by the evidence in the
record as a whole. 29 C.F.R. �1614.305(c).
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant,
petitioner herein, to initially establish that there is some substance
to his or her allegation. Petitioner's claim of disparate treatment is
examined under the tripartite analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). In general, for
petitioner 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; Cooper v. Federal Reserve Bank of Richmond,
467 U.S. 867, 875 (1984). This analysis, developed in the context of
Title VII proceedings, also applies to cases arising under the ADEA.
Jackson v. Sears, Roebuck & Co., 648 F.2d 225 (5th Cir. 1981).
The Commission's analysis need not focus on the establishment of
the prima facie case where the agency has articulated a legitimate,
nondiscriminatory reason for its actions. Washington, v. Dept. of the
Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming that petitioner established a prima facie case of age and race
discrimination, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. The record
indicates that although petitioner was given the opportunity to update
his resume and make sure that his personnel file accurately reflected
all of his experience and skills in anticipation for any positions that
might have become available, petitioner did not do so. Petitioner's
argument's regarding his qualifications go to someone who was selected
for the position two years earlier and who was found to be qualified. In
addition, his arguments regarding the MVO detail concern an event that
occurred after the RIF became effective. As the AJ pointed out, an agency
may utilize its workforce as is necessary to fill a temporary workload
need. Petitioner has not shown that the agency's reasons for its action
were a pretext for discrimination.
Based on the foregoing, the Commission concurs with the Board's finding
that petitioner's removal was not the result of unlawful discrimination.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination. The Commission finds that the
Board's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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 13, 2001
__________________
Date