01a53735
10-21-2005
Cherrie Haywood et al, Complainants, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Cherrie Haywood et al v. Dept. of Commerce
01A53735-3737, 3739-3746
October 21, 2005
.
Cherrie Haywood et al,<1>
Complainants,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal Nos. 01A53735-3737, 3739-3746
Agency Nos. 02-56-84-86, 02-56-88-96
Hearing Nos. 100-2004-00029X-00031X, 00033X-00040X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainants'
appeals from the agency's final orders in the above-entitled matter.
Complainants alleged that the agency had discriminated against them on
the basis of race (African American)<2> when they were downgraded from
their temporary GS-8 positions into their original GS-7 positions.
The record indicates that all of the complainants were Legal Instrument
Examiners (LIE), GS-7 at the U.S. Patent and Trademark Office, Office of
Initial Patent Examination. The agency was in the process of implementing
a new electronic search system using contract, rather than federal
employees. As part of the implementation process, a number of permanent
GS-8 Lead LIEs were assigned to train the contractors. Therefore the
agency decided to replace these permanent Lead LIEs, with temporary
Lead LIES. Each of the complainants accepted one of these temporary GS-8
Lead LIE positions. Their new job was to lead and train approximately 120
other GS-7 LIEs who ultimately would be transferred to technology centers,
to operate on their own, which is why the GS-8 Lead LIE positions were
advertised as temporary positions, not to exceed one year. All of the
complainants conceded that they knew when they took them, that their
GS-8 jobs were temporary.
In June 2002, they were collectively told that, effective August 2002,
their temporary positions would expire and they were being returned
to their permanent GS-07 positions. At this point the other LIEs
had transferred to the technology centers, and complainants were no
longer performing Lead duties. Upon return to their GS-7 positions,
they requested a desk audit of their positions. The audit was conducted
by the agency's Office of Human Resources and a determination was made
that the complainants' jobs were properly classified at the GS-7 level.
The complainants then filed the instant complaint which was investigated.
The complainants requested a hearing, and just prior to the hearing they
requested that their complaint be amended to include a claim of an Equal
Pay Act (EPA) violation with an allegation that when they were returned to
their permanent GS-7 positions they were required to perform work equal to
that required of higher paid employees. The complainants also argued that
they should have been promoted through an accretion of duties. when their
positions were not upgraded following a desk audit. The Administrative
Judge (AJ) denied their request to amend their complaint regarding
the EPA claim, and indicated that the date they filed their motion to
amend would be the date of initial EEO counselor contact. After the AJ
returned the EPA matter to the agency, it issued a decision dismissing
the claim because of untimely EEO counselor contact and for failure to
state a claim because the person to whom they compared themselves was
a GS-14 Program Analyst and as such the complainants failed to show how
they were aggrieved. The complainants filed an appeal of this decision.
The AJ issued a second decision without a hearing, on the merits of
their complaint concerning the down grade and found no discrimination.
The AJ's summary judgement decision noted that complainants' supervisor
had tried to get their GS-7 positions reclassified to GS-8, but the
agency's Office of Human Resources found that the job duties did not
warrant a GS-8 level. The AJ found that complainants failed to establish
a prima facie case of discrimination because the persons to whom they
compared themselves were not similarly situated - the comparators were
already permanent GS-8 employees. Many were the same race, and some had
different job titles. Some were also GS-13 and GS-14s. In any event,
the AJ found that even if the complainants could establish a prima facie
case of discrimination, they failed to show that the agency's reason for
its actions was a pretext for discrimination.<3> The agency adopted the
AJ's findings and the complainants filed a second appeal.
With respect to the agency's dismissal of the EPA claim, the AJ determined
that the complainants raised the issue for the first time when they
sought to amend their complaint. The record contains a letter from
the complainants to the EEO office within the agency dated September
17, 2003, wherein the complainants expressed their desire to amend
the complaint. For timeliness purposes, the Commission finds this
should be viewed as the date of EEO counselor contact. Nonetheless,
the Commission finds their attempt to raise the EPA claim, which arose
following their downgrade, encompassed a new claim concerning pay issues,
and thus was untimely even using the September 17, 2003 date. 29 C.F.R. �
1614.105(a)(1).
With respect to the down grade issue, the complainants argue that the
AJ should not have decided the issue by summary judgement. However, the
Commission finds the record was fully developed including 17 affidavits by
the complainants, and that the complainants were given the opportunity
to respond to the agency's witnesses' statements. The complainants
have not presented on appeal what discovery they would have sought,
nor have they established that there are material facts in dispute on
the issue of the downgrade.
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 order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred. Further, the Commission
affirms the agency's decision dismissing the EPA claim as being untimely.
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
October 21, 2005
__________________
Date
1 The remaining complainants are Deshawn Durham (01A53736), Monica Young
(01A53737), Tushombe Stokes (01A53739), Karen Smith (01A53740), John
Dill (01A53741), Theresa A. Williams (01A53742), Marian Day (01A53743),
Eleanor Kurtz (01A53744), Kathy Nelson (01A53745) and Roxanne Rawls
(01A53746). The complainants filed individual complaints that were
consolidated for processing.
2One complainant (Kurtz, 01A53744) was Caucasian and alleged
discrimination based on age. Haywood also alleged discrimination based
on age, but was 35 years of age at the time. As such, she did not fall
under the protections of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq.
3It was in this decision that the AJ addressed the promotion due to
accretion of duties claim. The AJ returned that matter to the agency for
investigation and the agency is currently investigating that claim. As
such we decline to address it at this time.