01a00147
02-25-2000
Janet E. Mann, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Information Systems Agency), Agency.
Janet E. Mann, )
Complainant, )
)
v. ) Appeal No. 01A00147
) Agency No. ATL98IS0491E
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Information )
Systems Agency), )
Agency. )
________________________________)
DECISION
The Commission finds that the agency's September 3, 1999 decision
finding that the agency did not discriminate against complainant based on
complainant's race (Black) and sex (female) was proper.<1> The agency
defined the complaint as alleging that complainant was discriminated
against when her promotion to a GS-13 was unduly delayed and when she
received a two-year temporary promotion instead of a permanent promotion
due to the delays. There is no indication that complainant requested
a hearing before an EEOC Administrative Judge.
The agency found:
Complainant . . . began working at Maxwell Air Force Base in 1987 as a
Classification Specialist in the Civilian Personnel Office (CPO) [now
renamed Civilian Personnel Flight]. In 1990, she was promoted to GS-11
and in 1995 she was selected for the new position of Administrative
Officer, GS-341-12, in the Defense Mega Center (DMC), a unit of the
Defense Information Systems Agency (DISA). As a tenant on Maxwell AFB,
the DMC was serviced by the Maxwell CPO. On February 15, 1998, the
Complainant received a two-year temporary promotion to GS-341-13.
. . . .
In May 1996, as part of a DMC reorganization, the Complainant's position
description was rewritten to reflect an increase in her duties and
responsibilities, and her position was reclassified as a GS-13, to
reflect the accretion of duties.
The agency provided the following non-discriminatory reasons in its
decision for the delay in complainant's promotion:
[T]he work relationship between the DMC and Maxwell CPO was extremely
adversarial and resulted in across the board delays of DMC personnel
actions. [Four persons] all testified that there was some professional
animosity between the Complainant and employees at the CPO because
she (the Complainant) had been hired as the Administrative Officer.
There is also testimony from CPO employees and DISA management that
any delays occurred not because of discrimination but for lack of DMC
organizational charts and manpower documents, DISA-wide reorganizations,
reductions in force (RIFs), the ongoing process of converting a military
staff to a civilian and contractor staff and a DISA management policy
decision to make all DMC upgrade at that time temporary.
The Commission finds that complainant's promotion action took an unusually
long time. The Commission finds that many persons in DMC and Maxwell CPO
were involved, to different degrees, in the processing of complainant's
promotion. Both of these offices put some of the blame on the other
office for at least a portion of the delay. The Civilian Personnel
Officer at Maxwell CPO admitted that some of the delay was caused because
he had his �worst� employee working on the initial position description.
The Personnel Management Specialist who reviewed complainant's description
(after the initial evaluation by another classifier) stated that she took
approximately five months to write the evaluation because: (1) she was
also working on RIFs, which took priority; (2) she knew she was going
to deny the upgrade, so she did not �push it�; and (3) she had to do a
thorough job because she was �overriding� another classifier's decision.
A Public Affairs Specialist stated that the five months the Personnel
Management Specialist took was not excessive given that: (1) �A review
and classification can frequently take as long as six months;� (2) the
review was �contentious�; and (3) the Personnel Management Specialist
had a heavy workload.
The record indicates that one or more persons at Maxwell CPO believed that
complainant was hired because of her race. A Captain at DMC stated that
there was �extreme jealousy� and �animosity� by Maxwell CPO because of
the hiring of the complainant. The Captain stated that the actions by
the Civilian Personnel Officer were motivated by racial discrimination
because the Civilian Personnel Officer would not talk to the Commander
whose race was Black (apparently Commander I) or the Captain, whose race
was also Black. The Captain stated that the Civilian Personnel Officer
did talk with Commander II, whose race was Caucasian.
The Commission finds that there is evidence in the record indicating
that persons in the Maxwell CPO and at DMC did not feel that complainant
deserved a promotion to a GS-13. Some or much of this feeling at Maxwell
CPO arose because of �jealousy� by GS-12 personnel at Maxwell CPO who
felt that they were performing equivalent functions as complainant
and/or who felt that they deserved the promotion more than complainant.
This jealousy or resentment is not discrimination on the bases of race
or sex.
The Commander at DMC from August 1995 to July 1996 (Commander I) stated
that complainant deserved the GS-13 promotion and that Maxwell CPO
delayed processing the promotion. Commander I stated:
[Complainant] was not transferred to DISA with the first five civilians,
but was one of the first 40 and received a promotion with the hire.
This promotion placed her at a higher grade than her peers in the CPO at
Maxwell. [The Civilian Personnel Officer] told me that the promotions,
including [complainant's] position, [were] not commensurate with grades
of equivalent complexity and series across Maxwell.
The Commission finds that Commander I's statements support the conclusion
that jealousy or resentment motivated, at least in part, Maxwell CPO's
actions.
A retired Position Classification Specialist provided the following
comments supporting the conclusion that jealousy or resentment motivated
Maxwell CPO's actions: �It was very difficult for the specialists in
personnel to see people leave and go to other organizations at a higher
grade. We all wanted promotions. Some specialists were in more of a
position to create havoc with other individuals' chances and reputation.�
Commander II (Commander starting July 1996 - through filing of complaint)
at DMC did not push complainant's promotion along by failing to give
it a priority. Commander II stated that she did not think it needed to
be given a priority, because she thought it was being taken care of by
Maxwell CPO. The Commission also finds that Commander II felt no need
to push complainant's promotion because of her feeling that complainant
did not fulfill her job responsibilities as a GS-12. The record fails
to indicate that Commander II's actions or inactions were motivated by
discrimination on the bases of race or sex.
After reviewing the record as a whole, the Commission finds that while
the agency did delay in promoting complainant, complainant has failed
to show by a preponderance of the evidence that the delay was caused
in any way by discrimination on the bases of complainant's race or sex.
The Commission finds that the record fails to show that any of the persons
involved in complainant's promotion were influenced by complainant's
race or sex. Complainant's showing that discrimination �might� have
happened is not the same as proving by a preponderance of the evidence
that discrimination did happen.
The ultimate promotion was a two year temporary promotion. To the extent
that complainant is alleging that the temporary nature of the promotion
was discriminatory (instead of merely a harm resulting from the alleged
discriminatory delay), we find that Commander II's following explanation
is legitimate and non-discriminatory:
This scenario was happening all over DISA and not just in
our organization. We were getting ready to go through a RIF
organization-wide, and headquarters didn't want new permanent positions
being created, or people going into new permanent positions and
then being riffed right out of them. So headquarters made all those
positions temporary. Even though the GS-13 was based upon an accretion
of duties, the issue would have been [complainant's] time-in-grade.
She wouldn't have been a GS-13 for very long and someone else could
have bumped her in a RIF and then she would have bumped someone else.
Headquarters did not want this scenario of people bumping each other,
so they just made all the positions temporary.
Therefore, we find that complainant has failed to show that the agency's
decision to make complainant's promotion temporary was motivated by
discrimination on the bases of race or sex.
The agency's decision finding no discrimination 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 (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:
February 25, 2000
DATE
Carlton
M.
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:
_____________________ _________________________ Date
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.