0120082044
08-14-2008
Billy W. Mcclinton, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Billy W. Mcclinton,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0120082044
Agency No. DFASINTS06036
Hearing No. 541200700102X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 18, 2008 final decision concerning
his equal employment opportunity (EEO) complaint 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
The record indicates that complainant filed a formal complaint
alleging that the agency discriminated against his on the bases of race
(Black) sex (Male), and age (59) when he performed GS-12 duties as an
Information Technology Specialist, but was not paid at the GS-12 rate
of pay. Complainant testified in this matter that in January 1997, his
supervisor assigned him duties as a project officer for the agency's
PX01 operating system. Complainant further testified that the duties
he performed for the PX01 system were GS-12 level duties because GS-12's
acted as program officers for such systems. Complainant states also that
his supervisor assigned him to work with the GS-12 Project Officer (PO)
for the Temporary Lodging Allowance (TLA) system. Complainant indicates
that when PO was not available, complainant's supervisor would direct
inquiries about the TLA system to complainant. Complainant cites other
examples in which he performed duties he alleges were at the GS-12
level including maintaining geographic location codes, programming and
other software duties as well as editing jobs previously performed by
a GS-12 employee.
Complainant states that he discussed being promoted to the GS-12 rank with
agency officials and was informed that the agency was in a "brownout"
and not implementing new programs at the time. Moreover, complainant
indicates that he did not request a desk audit of this duties at the time
because according to complainant his supervisors knew he was performing
GS-12 level work.
However, the record indicates that sometime in 2003, complainant
called the agency's human resources to discuss the desk audit process.
Complainant was advised that agency policy allowed employees to request
a review of their job, but the request must come from an employee's
supervisor. The agency's human resource officer informed complainant
of this requirement as well as complainant's supervisor. Thereafter,
in April 2006 complainant received an email from his supervisor advising
him that if his duties and responsibilities supported a grade higher
than GS-11, a desk audit would establish that. The email from his
supervisor requested that complainant to let his supervisor know if he
wished to have an audit of his position. In an email dated May 9, 2006,
complainant declined the audit of his duties and responsibilities.
In its final decision, the agency indicates that complainant was not
assigned any GS-12 level duties. The agency maintains that complainant
was never assigned duties as a project officer and that the editing
duties complainant was assigned were for typographical errors and
not substantive in nature. Moreover, the agency indicates that the
duties complainant performed was GS-11 level because it did not involve
developing or writing programming requirements and specifications.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant 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, 120 S.Ct. 2097 (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); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
Here, the agency found that complainant established a prima facie
case of discrimination as alleged. However, the final decision found
further that the agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the agency indicates that it
did not assign complainant any GS-12 level duties for which he did not
receive compensation as alleged herein. Moreover, the agency indicates
that in complainant's attempt to establish pretext, he states that his
supervisors did not review his work, assigned him insignificant tasks and
did not use his skills. Complainant's statements contradict his claim
that he was performing higher graded work for which he was not paid.
In that regard, we find that complainant has failed to establish that he
performed work for which he was not compensated, or that the agency's
stated reasons were pretext to mask discrimination. We also note that
complainant's statements combined with the fact that he declined the
agency's offer to perform a desk audit of his position do not support
his claims in this matter.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm 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 (M0408)
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 (S0408)
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 (Z0408)
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
August 14, 2008
__________________
Date
2
0120082044
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120082044