01970510
01-24-2000
Jessie J. Thompson, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency
Jessie J. Thompson v. Department of Veterans Affairs
01970510
January 24, 2000
Jessie J. Thompson, )
Complainant, )
) Appeal No. 01970510
v. ) Agency No. 95-1545
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning his
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1>
Accordingly, the appeal is accepted in accordance with EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency used the position classification
process to further a discriminatory practice of keeping complainant in
a low paying job because of his race (Black).
BACKGROUND
Complainant, a WG-4 Incinerator Operator (the Position), in the Jackson,
Mississippi Medical Center Environmental Management Service (EMS),
requested that his position's classification be upgraded to WG-11
in January 1995.<2> In April 1995, having no response, he contacted
an EEO counselor and thereafter filed a complaint of discrimination.
Complainant contended that the agency intentionally kept Black employees
in low grades,<3> failed to respond to his reclassification request;
failed to promote him to Incinerator Operator WG-11; failed to provide
him with relevant training;<4> and failed to transfer him and his position
to Engineering Services.
The day after complainant contacted an EEO counselor, complainant's
supervisor, the Chief, Environmental Services (the Supervisor) submitted
a request for reclassification for the Position to Human Resource
Management Services. In June 1995, the Position was reclassified as WG-5.
The Supervisor stated in his affidavit that he reviewed data on hazardous
materials disposal,<5> and submitted a position description (PD) for
reclassification to Human Resource Management Service (HRMS).
Complainant averred that he gave the Supervisor information from the
Environmental Protection Agency (EPA) and the ASME, a leading industry
association, on federal regulations and industry standards on training
and certification of incinerator plant operations.<6> Complainant
stated that the Supervisor ignored this information when writing the PD.
Complainant also contends the Supervisor failed to transfer the position
to Engineering Services where the grades are higher, failed to relate
the position to that of WG-11 Boiler Plant Operator in the PD, and failed
to document his personnel file with job related technical training.<7>
The Personnel Specialist (Specialist) who reclassified the Position
averred that classifications are based on Office of Personnel
Management (OPM) standards measuring a position's level of duties and
responsibilities.<8> He stated that where there is no published standard
for a particular occupation, as was the case here, classification is
derived through cross-reference to standards for occupations having
similar duties and responsibilities. The Specialist testified that
he performed a desk audit on June 8, 1995, and cross-referenced the
Position with that of laundry machine operator, equipment cleaner
and mobile equipment service because these jobs involved activities
and duties similar to those noted in the desk audit and listed on the
Incinerator Operator PD submitted by the Supervisor. The Specialist
testified that the Supervisor did not recommend any particular grade,
and stated that he rejected the Boiler Plant Operator position as a
cross reference because the only similarity between them was their use
of a piece of equipment that generates heat.
Four Black, male witness gave statements on complainant's behalf.
The first witness, a Housekeeping Aide, averred that he had been a WG-2
working in Oncology, that he notified the Supervisor that positions in
Oncology were rated as WG-3, and that he was promoted to WG-3 over a
year later while a white female, interior decorator was promoted twice
in six months. The witness also testified that the Supervisor told his
staff of predominantly Black employees, that they were not working up
to the standards of normal people, and that they could all leave and
work for construction companies instead. The witness interpreted the
statement to imply that they were unskilled, uneducated laborers.
The second witness testified that it took three years for him to get a
promotion. A third witness testified that after suffering a stroke, he
was denied disability and put on light duty while a white colleague who
suffered a similar stroke at about the same time was put on disability.
A fourth witness testified that the Supervisor once referred to him
as "boy." The witness contacted an EEO counselor and the Supervisor
apologized. The witness stated that he never heard anything more from
the EEO counselor.
In its final decision the agency found that the evidence of record did
not support complainant's claim of discrimination or establish that
management's articulated reasons for its actions were a pretext for
discrimination. On appeal, complainant argues that federal guidelines
on training requirements and operation of incinerators should apply.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Complainant has the initial burden
of establishing a prima facie case of discrimination. If Complainant
meets this burden, the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Complainant must then prove, by a preponderance of the evidence, that
the legitimate reason articulated by the agency was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
This established order of analysis, in which the first step normally
consists of determining the existence of a prima facie case, need not
be followed in all cases. Where the agency articulates a legitimate,
nondiscriminatory reason for the actions at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis,
that is, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 11, 713-714 (1983).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The Specialist justified the
reclassification with specificity. He performed a desk audit, and cross
referenced the duties and responsibilities noted in the audit and in the
PD with those of similar positions. The record indicates that complainant
was afforded training courses related to incinerator operations. While a
certain course taken was not listed in complainant's personnel file,
there is no indication that the omission was not due to oversight.
Notwithstanding, courses taken by complainant would have no bearing on
the reclassification because the Position's grade is based on the level
of duties and responsibilities assigned and not the qualifications and
training of the incumbent.
The burden returns to complainant to demonstrate that the agency's reasons
were a pretext for discrimination, that is, that the agency was more
likely motivated by discriminatory reasons. Burdine, 450 U.S. at 253.
The Commission finds that complainant fails to demonstrate that the
Position was not upgraded beyond a WG-5 because of discriminatory animus.
The Commission will not substitute its judgment for that of the agency
in assigning grade classification
CONCLUSION
Accordingly, the decision of the agency 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:
Jan 24, 2000
DATE Carlton 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:
1 On 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.
2 Complainant first sought reclassification in June 1991. The position
was upgraded from WG-2 to WG-3, and later upgraded from WG-3 to WG-4.
3 The Counselor's Report notes that in December 1994, EMS had 86
employees. Five white-collar positions were held by three whites and
two Blacks. Of 81 blue collar positions, including six supervisors,
all but one were Black.
4 Complainant contends that the Supervisor prevented him from obtaining
certification as an incinerator operator from the ASME, an industry
association that issued proposed standards for the operation of
incinerators, and training and certification for incinerator operators.
5 The June 1995, Incinerator Operator PD submitted by the Supervisor is
virtually identical to the July 1993, and December 1991, PD's.
6 The record indicates that, while the federal government and the state
of Mississippi do not require certification for incinerator operators,
the ASME published proposed industry standards for the training and
certification of incinerator operators. These standards include two to
six months of training and require operators to pass a written examination
for certification.
7 A review of the record confirms that Chemical Hazards and Emergency
Program Management training were not listed in complainant's file with
other training taken.
8 The Specialist stated that the qualifications of the incumbent have
no bearing on the classification or grade of the position.