0120130373
07-23-2015
Complainant v. Davita Vance-Cooks, Public Printer, United States Government Printing Office, Agency.
Complainant
v.
Davita Vance-Cooks,
Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 0120130373
Hearing No. 570-2009-00706X
Agency No. 08-19
DECISION
Complainant filed an appeal from the Agency's November 13, 2012, final order 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether an Equal Employment Opportunity Commission (EEOC) Administrative Judge's (AJ) decision, finding that Complainant did not prove that he was subjected to age and race discrimination with respect to his training duties and job responsibilities, is supported by substantial evidence.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Financial Information Analyst at the Agency's facility in Washington, D.C. Complainant has worked for the Agency since 1978. In 1993, Complainant was promoted from the position of Masonry Mechanic Apprentice in the Engineering Service to the position of Masonry Mechanic. After an injury, Complainant was detailed in July 1999 to a Data Accumulation Technician position in the Finance and Administration Division. Data Accumulation Technicians make corrections and gather information for the Probe data collection system and perform filing duties.1
On March 11, 2011, Complainant was reassigned from Masonry Mechanic in the Engineering Service to Data Accumulation Technician, PG-7, Step 10, in the Office of the Comptroller, Plant Accounting Division, Plant Production Branch. The Plant Production Branch is primarily responsible for month-end closing and reporting with regard to revenue, sales, expenses, and gross margins.
On October 17, 2004, Complainant was promoted to Financial Information Analyst, PG-9, Step 5, in the Office of the Comptroller. This position had full promotion potential up to PG-12, which Complainant attained. The duties of Financial Information Analysts include developing recommendations for improvements in data collection systems to enhance the effectiveness of data collection systems and providing information for managerial positions. Financial Information Analysts also provide advice to managers on all aspects of data collection systems and coordinate training and training materials for data collection systems, procedures, and methods. During the relevant time period, Complainant was supervised by the Chief of the Plant Production Branch (S1).
In addition to Complainant, S1 supervised three other individuals, including a Supervisory Data Collection Analyst (C1), PG-13, who was reassigned to Financial Information Analyst in 2008. C1 developed and maintained the Agency Cost Center Codes Database used in all data collection, recording, and reporting systems; developed methods and procedures for collecting plant production data; and planned, coordinated, directed, and controlled data accumulation functions and related reports and services for the Agency. Additionally, C1 worked on a Mississippi project, which involved a new $40 million Agency facility for passport production. C1 also worked with annual budget preparation, annual budget purchase requests, and capital requests. C1 received training from Complainant regarding the Probe system.
Complainant also trained supervisors throughout the Agency on how to make code corrections in the Probe system and arranged for the system to be set up on classroom computers. S1 also received Probe training from Complainant after S1 asked Complainant to show her what he did on a daily basis with Probe printouts she received. In a December 12, 2007, e-mail, Complainant provided a solution to a supervisor in the Passport Section with respect to a kickout problem in that Section. In a January 9, 2008, e-mail from S1 to an information technology official (IT1), S1 informed IT1 that Complainant would provide a Probe class for two supervisors, which Complainant did.
Additionally, Complainant was assigned to advise supervisors about their responsibility to enter information in the Probe system and to train people to make entries into another data collection system (MPIO) that recorded whether employees were working or on leave.
On March 14, 2008, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (African-American) and age (born April 1954) when, on or about January 9, 2008, the Plant Controller instructed him to train other employees and/or take the lead on projects involving his supervisor and higher-paid Caucasian employees.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing, which the AJ held on January 10 and 11, 2012.
AJ's Decision
The AJ issued a decision on September 28, 2012. In her decision, the AJ concluded that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, the AJ noted Plant Controller's testimony that providing training to managers and supervisors regarding the Probe system was part of Complainant's position description. The AJ also noted the Plant Controller's testimony that Complainant was responsible for cross-training because staff members must be able to cover for other employees when they are absent. The AJ further noted the Plant Controller's testimony that Complainant trained a Financial Information Analyst (C2) in detail billing because Complainant had previously performed these duties. The AJ concluded that, although Complainant expressed disagreement with the Agency's policy of cross-training, agencies generally have broad discretion to set policies and carry out personnel decisions, and such decisions will not be second-guessed unless there is evidence of unlawful discrimination.
Regarding Complainant's argument that he trained supervisors and performed some of S1's duties while she had surgery, the AJ concluded that this did not translate into him performing higher-graded duties on a permanent basis. The AJ found that Complainant failed to produce any compelling evidence to suggest unlawful motivation on the part of the Agency with respect to its personnel decisions. The Agency subsequently issued a final order fully implementing the AJ's decision.
CONTENTIONS ON APPEAL
Neither party presents any arguments on appeal.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
In order to prevail on 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). Complainant must initially 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 burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, for purposes of analysis and without so finding, we assume that Complainant established a prima facie case of unlawful discrimination. Nonetheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, the Agency stated that Complainant provided training and took the lead on projects because it was part of the job duties found in his position description, and the Agency sought to cross-train employees so that they could perform a variety of tasks. Upon review, we find that Complainant did not show that the Agency's non-discriminatory explanations were pretext for unlawful discrimination. Thus, we find that the AJ's decision - that unlawful employment discrimination was not proven by a preponderance of the evidence - is supported by substantial evidence of record.
CONCLUSION
Consequently, for the foregoing reasons, we find that substantial evidence supports the AJ's conclusion that Complainant has not shown that he was subjected to age or race discrimination with respect to his training duties and job responsibilities.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 23, 2015
Date
1 The Probe system is a data collection system used to gather information regarding the length of time that an Agency employee worked on a particular job or machine. When information was not entered correctly into the Probe system, a "kickout" would be produced.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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