0120073024
09-19-2007
Annie M. Carter, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Annie M. Carter,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 0120073024
Agency No. DOS-F-058-06
DECISION
Complainant timely initiated an appeal from the agency's May 25, 2007 final decision concerning her equal employment opportunity (EEO) complaint claiming 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., 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(a).
During the period at issue, complainant was employed as a Chief Financial Management Officer, GS-14, at the agency's East Asia and Pacific Affairs Bureau (EAP/EX) in Washington D.C.
On April 11, 2006, complainant filed the instant formal complaint, claiming that she was discriminated against on the bases of sex (female) and age (over 40) when:
she was denied a position reclassification of her Chief Financial Management Officer (CFMO) position to GS-15 while comparable CFMO positions in other bureaus were reclassified at the GS-15 level.
Complainant further claimed that the agency has consistently refused to reclassify her position since 1998 when she assumed the position of CFMO.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b) finding no discrimination.
In its May 25, 2007 final decision, the agency found that assuming complainant established a prima facie case of sex and age discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
The record reflects that the former Position Classification Specialist (Specialist) stated that since 1993, the Office of Personnel Management (OPM) standard for grading supervisory positions provides that "one of the factors in grading a supervisory position is the grade level of work (not of employees, but of work) being supervised." The Specialist further stated "we credit the highest work level performed for twenty-five percent or more of the time by subordinate employees." The Specialist stated that OPM standard also provides that the supervisory grade has to be at least one grade above the highest level of work performed for at least twenty-five percent of time by the subordinates. The Specialist stated that the grade levels "assigned by the classifier to each of the six factors determines the supervisory grade level. Each supervisory position is also looked at for grade level based on the technical (non-supervisory) personal work of the supervisor. The higher of the two grades becomes the grade of the position." The Specialist stated that the above mentioned analysis combined with other factors set forth in OPM standards determine a supervisor's correct grade level.
Further, the Specialist stated that under OPM standards, there are "two different analyses for determining a supervisor's grade: (1) a supervisor's grade, which is heavily dependant on the grade level of work of the supervisor's subordinates; and (2) a technical grade, which looks at the technical duties of the person involved." The Specialist further stated that "usually both analyses are performed during a reclassification and the benefit of doubt is given to the incumbent." The Specialist stated that he used the same analysis in complainant's case, and concluded that her position was correctly classified as a GS-14. The Specialist stated that he spoke with complainant, her supervisor and all employees that worked for complainant, including the identified GS-15 employee whom she supervised. The Specialist stated that during the reclassification of the entire bureau, complainant's position was the last position to be classified "because it was necessary to determine the proper classification of work for her subordinates before her classification could be done."
Regarding complainant's assertion that complainant should be reclassified at the GS-15 position because she supervised a GS-15 employee, the Specialist stated that an identified GS-15 employee "had been grandfathered in at that grade under the Act merging the State Department and the United States Information Agency (USIA), which provided that no USIA employee would lose their grade when the two agencies merged in 1999." The Specialist stated that his analysis of the identified GS-15 employee's work determined that it was actually a GS-13 position. The Specialist stated "my analysis "of the highest level of work at the twenty-five percent threshold level of employees under [complainant's] supervision was GS-12."
Regarding complainant's assertion that other CHMO are classified as GS-15, the Specialist stated that complainant implied that there is a requirement that all positions be graded equally at the same time. The Specialist further stated that complainant's assertion that "the grade of other positions with the same title or even similar positions is not a relevant factor to use in determining the grade for that position. Jobs are never the same. Bureaus vary greatly in size and duties, and different positions with identical titles may have very different actual duties and responsibilities, and consequently be classified differently." Furthermore, the Specialist stated that complainant's sex and age were not factors in his determination that complainant's position was correctly classified as GS-14.
The record further reflects that the Supervisory Human Resources Specialist (SS) stated that he agreed with the Specialist's classification finding that complainant's position was correctly classified at GS-14; and denied that complainant was discriminated against. Regarding complainant's assertion that other CHMO were classified at the GS-15 level, SS stated that classification "is not done by comparing positions. It is only done by comparing the duties of a given position with the standards set forth by OPM. For reclassification purposes it doesn't matter if other the same or similar position in the other bureaus was a GS-15."
The Director of the Office of Resource Management and Organizational Analysis (Director) stated that that he was the concurring official concerning complainant's classification appeal. The Director stated that his office's classification function includes the oversight of Foreign Service position classification overseas and civil service appeals. The Director further stated that because complainant filed an appeal concerning her classification, an identified classification appeals officer worked on her appeal; and concluded that complainant's position was correctly classified at the GS-14 level. Specifically, the Director stated that "the analysis of the duties described in the position description compared with the job description for that occupational series did not warrant a GS-15." The Director stated that complainant's appeal "was a straight forward appeal and nothing struck me as unusual about the facts."
The Deputy Assistant Secretary (DAS) for the Bureau of Human Resources stated that she became involved in complainant's case when her supervisor contacted her and asked when she could do to get complainant's position reclassified. Specifically, DAS stated that complainant's bureau felt that complainant's position should be upgraded from a GS-14 to GS-15 "even though classification standards for Civil Service and Foreign Service positions are different and a Foreign Service grade cannot be used as the basis for comparison for a Civil Service position. Notwithstanding this fact, the Bureau initiated a new classification appeal in 2005." DAS stated that she asked complainant's supervisor if she had any additional information that would support her assertion that complainant's position should be reclassified as a GS-15. DAS stated that the supervisor "provided additional information to me about the scope of [complainant's] job, including: the guidance [complainant] gave to the posts she supervised; the change in the amount of the budget she controlled; the increased complexity of her position; the length of time and quality of her service; and the growth of EAP."
Further, DAS acknowledged that the additional information had not been properly presented or explained before the Human Resources, Civil Service Personnel (HR/CSP) and Human Resources, Office of Resource Management (HR/RMA). DAS stated that because she supported HR/CSP and HR/RMA's decision, she rescinded complainant's classification appeal. DAS stated "in my position, however I was not constrained by the rigid guidelines that control the classification and appeals process and was able to look at all of the facts in the case to come to an equitable decision given the unique characteristics of [Complainant] and her duties at EAP." Furthermore, DAS stated that she supported the decisions made by HR/CSP and HR/RMA and does not believe that "either office acted improperly."
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions which complainant did not prove were a pretext for discrimination, and that complainant has not demonstrated that these reasons were a pretext for discrimination.
After a review of the record in its entirety, including consideration of all statements on appeal, the Commission AFFIRMS the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
September 19, 2007
__________________
Date
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0120073024
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073024
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