01970650
12-08-1999
Benny Rosser, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Benny Rosser, )
Complainant, )
)
v. ) Appeal No. 01970650
) Agency No. 95-0337
Rodney E. Slater, )
Secretary, )
Department of Transportation )
(Federal Aviation Administration), )
Agency. )
)
DECISION
On October 29, 1996, Benny Rosser (hereinafter referred to as complainant)
filed a timely appeal from the September 27, 1996, final decision of the
Department of Transportation (hereinafter referred to as the agency)
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq.<1> The appeal is timely filed (see 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.402(a))) and is accepted in accordance with EEOC
Order No. 960, as amended. For the reasons that follow, the agency's
decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
him on the basis of race (black) when his new position was not upgraded
in December 1994.
Complainant filed a formal complaint February 22, 1995. After an
investigation, complainant requested a final agency decision (FAD)
without a hearing. In its FAD, the agency found no discrimination,
and complainant has filed the instant appeal.
Pursuant to a reorganization, the Human Resources Management Division
(HRMD), Atlanta, Georgia, was collapsed into three branches, i.e.,
Personnel Services, Customer Relations, and Workforce Development.
Complainant, formerly a Supervisory Personnel Staffing and Classification
Specialist, GS-14, was assigned as Manager, Personnel Services Branch,
GS-14, with 25 employees. The managers of the other two branches were
also assigned as GS-14s; one was white, and one was black, and there
were 22 employees in Customer Relations and 11 in Workforce Development.
Complainant claimed that his new position had greatly enhanced
responsibilities that merited upgrade to GS-15. He claimed that the
Acting Manager of HRMD (S1) denied his position an upgrade for political
reasons, in that, S1 sought to fuel his candidacy as permanent Manager
of HRMD, GS-15. Complainant compared his position to the position of
Manager, Public and Government Affairs, encumbered by a white female,
which had originally been classified as GS-14, but was reclassified by
S1 to GS-15. Also, he stated that several white GS-15 employees did
not have supervisory responsibilities, e.g., a Program Manager in Flight
Standards and a Special Projects Officer in the Civil Aviation Security
Division, neither of which were part of HRMD.
S1 asserted that an upgrade to GS-15 for complainant's position was not
warranted following normal classification computation methods, noting
also that all assistant manager positions in HRMDs nationwide were rated
at GS-14 or below. He acknowledged that he modified the classification
for the Manager, Public and Government Affairs, position based on his
judgment that its new responsibilities, including reporting directly to
headquarters, had not been previously and fully considered.
In its FAD, the agency found that it articulated legitimate,
nondiscriminatory reasons for its actions, i.e., upgrade of complainant's
position, although scoring close to classification as GS-15, was not
justified. Also, the agency held that the classification for the Manager,
Public and Government Affairs, position was properly reconsidered in
light of new responsibilities. It also found that complainant did not
sustain his ultimate burden to demonstrate that the agency discriminated
against him.
In his appeal statement, complainant contended that he stated a
prima facie case and criticized the agency's reasons for its actions.
He further asserted that, because the agency failed to carry its burden
to refute his prima facie case, he demonstrated pretext. The agency
filed comments in support of its FAD.
Generally, analysis of complaints of discrimination follow the tripartite
scheme of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
A complainant 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 reason 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). Next, the
agency offers rebuttal to complainant's inference of discrimination by
articulating a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981); see U.S. Postal Service Board of Governors v. Aikens, 460
U.S. 711, 715-716 (1983). Once the agency has met its obligation of
articulation, the complainant bears the ultimate burden to persuade the
fact finder by a preponderance of the evidence that the reasons offered
by the agency were not the actual reasons for its actions but rather
were a pretext for discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993). Complainant must show that the agency's action was
more likely than not motivated by discrimination, that is, that the action
was influenced by legally impermissible criteria. Burdine, 450 U.S. at
253; Baker v. USPS, EEOC Petition No. (May 13, 1999). Absent a showing
that the agency's articulated reason was used as a tool to discriminate
against him, complainant cannot prevail. Burdine, 450 U.S. at 256;
Crosland v. Department of the Army, EEOC Petition No. 03990018 (July 1,
1999); Mongere v. Department of Defense, EEOC Appeal No. 01970738 (March
18, 1999).
Where the agency articulates an explanation for its actions, we
may proceed directly to the third step of the McDonnell Douglas
analysis--the ultimate question of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. United States Postal Service Board of Governors
v. Aikens, 460 U.S. 713-14. Here, we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions when it assigned
complainant to a new position and did not upgrade the position to GS-15.
The agency's burden of articulation is not onerous but must be clear
and raise an issue of fact so that complainant has an opportunity to
demonstrate pretext. Burdine, 450 U.S. at 254-256. We find that the
agency's reasons for its actions, as stated by S1, meet this criteria.
S1 stated that upgrade of complainant's position was not warranted,
that his revision of the classification for the position of Manager,
Public and Government Affairs, was proper and justified based on the
recent realignment of the position, and that all branch managers in HRMD
nationwide were at GS-14 or below. This articulation is sufficient to
provide complainant an opportunity to demonstrate pretext.
In support of his claim, complainant criticized the agency's explanation
as "entangled in a web of tales," but none of his arguments undermine
the validity of the agency's stated reasons. Instead, complainant
restates the reasons to justify an upgrade of his position, repeating
his argument that his duties were greatly enhanced and his supervisory
responsibilities increased. It is not the Commission's function to
adjudicate whether complainant's position merited an upgrade, however,
as long as that determination is not based on discriminatory factors.
Here, complainant has not met his burden to demonstrate pretext.
Complainant's argument that his burden under St. Mary's is curtailed
because the agency failed to articulate legitimate, nondiscriminatory
reasons is incorrect. We have found that the agency, in fact, met its
burden of articulation so that complainant was obliged to demonstrate
pretext, which we find that he failed to do.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (Z1092)
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:
12-08-99
Date Carlton Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________1On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all Federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at WWW.EEOC.GOV.