01976364
10-01-1999
Gary M. Small, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Gary M. Small v. Department of Health and Human Services
01976364
October 1, 1999
Gary M. Small, )
Appellant, )
) Appeal No. 01976364
v. ) Agency No. IHS-026-96
)
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
discrimination based on race (American Indian), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e, et seq.,
when his temporary position was not converted to a permanent position. The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a Personnel Assistant, GS-203-7, in the Indian Health Service in the
agency's Portland, Oregon Area Office, under a Schedule A, temporary
appointment not to exceed three (3) years. Record of Investigation
(ROI) Exhibit 4 at 23. He previously held temporary positions as
Staffing Clerk, GS-5, and Staffing Assistant, GS-6. Appellant alleged
that he was subjected to disparate impact discrimination when his
temporary position was not converted to a permanent position, and when
the agency posted various vacancy announcements which for which only
permanent employees were permitted to apply. Appellant contends that on
October 23, 1995, and November 27, 1995, he requested an opportunity to
apply for his own position once it was converted to permanent status,
but received no response. Appellant also contends that he received no
written clarification regarding why his position could not simply be
converted into a permanent status position without his having to apply
for it. Appellant further contended that he and other temporary status
employees were given duties and functions which were permanent rather
than temporary.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint on February 8, 1996.
In the EEO investigation, the Director of the Office of Health Programs
(Member of Creek Indian Tribe) (MO1) attested that as a member of
the Portland Area management team, she participated in discussions
regarding delivery of health care services and fulfillment of fiscal
responsibilities. MO1 stated that the criteria by which positions are
designated either permanent or temporary include the components of the
work and length of time that the work will be needed. ROI Exhibit 7 at
87. For example, she stated that some positions are "project specific,"
such as a construction project which is funded for a specific time frame
in which the construction will be completed. Id.
MO1 asserted that the rationale for not converting personnel staff
positions, such as appellant's position, into permanent positions, was
that the quantity of personnel work was decreasing due to the process
of tribal governments assuming responsibility for the operation of their
own health care systems as well as the management of support resources.
Id. at 88. MO1 attested that as a result, the number of full-time
employees in the area office had decreased from 160 in 1993 to 110 in
1996, and the number of total full-time employees at local sites had
decreased by approximately 75 during the same period. Id. The decrease
in work required that jobs be redesigned in order to maintain full-time
employment for a smaller number of staff. In addition, easily-recruited
positions, positions which could be performed with on-the-job training,
and certain non-critical positions were therefore designated to be
temporary, in order to give flexibility to the offices and divisions
of the Indian Health Service in downsizing, particularly the Portland
Area Office. Id.
The Director, Division of Financial Management, Portland Area (Enrolled
Member of Caddo Tribe of Oklahoma) (MO2), attested that he was Acting
Director, Office of Administration and Management at the time the matters
at issue arose, and served as appellant's third-level supervisor as
well as a member of the Area Executive Committee. MO2 attested that he
was involved in the decision-making process to determine which vacant
positions would be filled and how, i.e. grade, permanent versus temporary
status, and like designations.
MO2 conceded that there were no predetermined written criteria for
evaluating each vacant position. ROI Exhibit 8 at 94. He attested,
however, that the Area Executive Committee never considered converting
any temporary employees to permanent status, an action which he contends
would not have made sense in light of the forthcoming reduction-in-force
and downsizing. Id. at 95. MO2 further attested that some temporary
employees did apply and were selected for some of the permanent positions,
but none were simply converted to permanent status in their current
positions. Id.
At the conclusion of the investigation, appellant requested that the
agency issue a final agency decision. The FAD concluded that appellant
failed to establish a prima facie case of disparate impact discrimination
because he presented no evidence that a disparity existed between Indians
and non-Indians holding permanent positions in appellant's work group.
The FAD further concluded that even assuming arguendo that appellant had
established a prima facie case of discrimination, management articulated
a legitimate business-related reason for the challenged actions, and
that appellant failed to refute management's explanation.
On appeal, appellant directs our attention to several vacancy
announcements which provide that only permanent status employees, and
applicants outside the Indian Health Service, may apply. Appellant argues
that this hiring requirement has a disparate impact on Indian employees,
inasmuch as the vast majority of Indian Health Service employees are
American Indian. For the same reason, appellant also contends on appeal
that the EEO investigator erred in not examining statistical data from
other agencies as a basis for comparison, rather than limiting the inquiry
to appellant's work group. Finally, appellant contends that management's
assertion regarding funding constraints is pretextual, because it is
unsupported by documentation, and because management could not have had
prior knowledge of recent funding losses. The agency requests that we
affirm its FAD.
To establish a prima facie case under a disparate impact theory,
a complainant must demonstrate that the challenged neutral policy or
practice disproportionately impacts members of the protected class.
Specifically, a complainant must: (1) identify the specific practice(s)
challenged; (2) show statistical disparities; and (3) show that the
disparity is linked to the challenged practice or policy. Kimble
v. Department of Commerce, EEOC Request No. 05950638 (June 20, 1997).
Once a prima facie case is established, the agency must demonstrate
that the practice at issue is job-related and consistent with business
necessity.
The Commission agrees with the agency that appellant failed to establish a
prima facie case of disparate impact discrimination. While appellant has
identified a specific subjective practice with respect to the designation
of certain positions as temporary versus permanent, appellant cannot
demonstrate the requisite statistical disparity to satisfy the prima facie
case requirements. The size of the relevant workforce (fifteen) is so
small that no meaningful inference can be drawn from any differences.
See Wagner v. Department of Veterans Affairs, EEOC Appeal No. 01930590
(September 30, 1993); Fudge v. Providence Fire Department, 766 F.2d 650,
657 (1st Cir. 1985). Moreover, the specific inquiry is whether there is
a disparity in the selection rates between Indians and non-Indians for
permanent positions. Id.; see also Hazelwood School District v. United
States, 433 U.S. 299 (1977). Here, the undisputed evidence demonstrates
that all of the permanent positions were in fact occupied by employees
of the same race as appellant, with the exception of one occupied by
a non-American-Indian and one vacant position. This precludes any
inference that race was an operating factor in the policy at issue.
Moreover, we find that appellant's assertion that a fair analysis of
his disparate impact claim requires comparison statistics from other
federal agencies is incorrect. While an employee may utilize statistical
evidence to establish a prima facie case, the statistics must focus on
the proper job classification within the context of the specific agency
practice at issue. Cf. Christopher v. Department of the Treasury, EEOC
Appeal No. 01933563 (March 15, 1994). Accordingly, statistics regarding
employees from other agencies would not be relevant.
Furthermore, even assuming arguendo that appellant did establish a
prima facie case, we agree with the FAD that management has demonstrated
that the policy at issue was job-related and consistent with business
necessity. Although appellant contends that management could not have
been aware at the time in question of forthcoming financial constraints
and personnel reductions, he nevertheless does not dispute the testimonial
evidence regarding MO1's role in the transfer of program responsibilities
to local tribes, the decline in the number of employees from 1993 onward,
and MO2's role on the Area Executive Committee. This evidence supports
management's reasons for its actions, and appellant has produced no
evidence to the contrary.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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:
10/1/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations