John D. Jones, Appellant,v.William S. Cohen, Secretary, Department of Defense, Agency

Equal Employment Opportunity CommissionOct 1, 1999
01970581 (E.E.O.C. Oct. 1, 1999)

01970581

10-01-1999

John D. Jones, Appellant, v. William S. Cohen, Secretary, Department of Defense, Agency


John D. Jones v. Department of Defense

01970581

October 1, 1999

John D. Jones, )

Appellant, )

) Appeal No. 01970581

v. ) Agency No. 96-PC-06

)

William S. Cohen, )

Secretary, )

Department of Defense, )

Agency )

)

DECISION

INTRODUCTION

Appellant timely filed an appeal with the Equal Employment Opportunity

Commission (Commission) from the final decision of the agency concerning

his allegations of discrimination in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal

is accepted by the Commission in accordance with the provisions of EEOC

Order No. 960.001.

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against

appellant based on sex (male) when management promoted a female co-worker

(Co-worker) to a GG-1084-13 in January 1996.

BACKGROUND

Appellant was a Visual Information Specialist (VIS), GG-1084-12.

The record shows that in October 1993, the Co-worker, a Technical

Publication Editor/Writer (Writer) GG-1083-12, was switched to the

VIS GG-1084 job series and later promoted to GG-1084-13.<1> Appellant

alleges that the Co-worker was switched to his job series in order to

ensure her promotion to Grade 13. Appellant states that the Co-worker

faced competition for promotion from other Writers in the GG-1083 series

but faced none in the GG-1084 series.<2> Appellant states that he could

not compete with the Co-worker because he was not targeted to a GG-13.<3>

Appellant contends he was more qualified for the VIS GG-1084-13 promotion

because he has over 30 years of visual arts experience. The record

indicates that the Co-worker did not have VIS experience and did not

perform VIS work, either prior to or after the series switch.

According to the EEO Counselor's Report, appellant's immediate supervisor

(Supervisor) stated in an interview with the EEO Counselor that the

Directorate Chief (DC), appellant's second line manager favored females.

He said the DC told him that the best way to take care of the Co-worker

and get her promoted was to transfer her to the GG-1084 series because

they had been successful in promoting another employee in that series.

The Supervisor said that the DC told him that if she promoted the

Co-worker as a GG-1083, two other employees might file discrimination

complaints, but as a GG-1084, she had no competition because appellant

was not going to be targeted to a GG-13. The Supervisor said the DC

directed him to write a job description for the Co-worker as a GG-1084.

The Supervisor said that because the Co-worker had twenty years experience

as a Writer/Editor he had to stretch the rules, writing all fluff and

no substance in order to write the job description.

The record shows that the Co-worker had twenty years of experience as

a writer/editor, and had some supervisory experience. She was a group

supervisor prior to a 1991 agency re-organization. After that she was

a group leader and assisted her Branch Chief in assigning work to group

members and providing input to the Branch Chief on members' appraisals.

Appellant had thirty years experience in technical illustration, graphic

arts and visual arts. Appellant was Acting Branch Chief when his Branch

Chief was unavailable.

Appellant's witness testified at the Fact Finding Conference that he was

present in a meeting where the DC stated that she wanted the Co-worker to

be promoted and directed the Supervisor to do whatever was necessary to

do it. An agency witness testified that the Co-worker was transferred

to the VIS GG-1084 series so that she could be promoted without going

through a new certification process which affected the writer/editor

GG-1083 series. The agency produced no other explanation as to why it

transferred the Co-worker to the VIS GG-1084 series. No evidence was

offered to explain why the Co-worker maintained a target grade of GG-13

when she switched series or why appellant was not targeted to the GG-13.

An agency representative explained only that the Co-worker's promotion

was approved by a panel.

The agency's final decision found no evidence to support appellant's

allegation of discrimination. This appeal followed.

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. Appellant has the initial burden

of establishing a prima facie case of discrimination. If appellant

meets this burden, the burden shifts to the agency to articulate

some legitimate, nondiscriminatory reason for its challenged action.

Appellant 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).

Appellant can establish a prima facie case of discrimination based

on sex by showing: (1) that he is a member of the protected group;

(2) that he was qualified for the promotion; (3) that he was not

allowed the opportunity to compete for the position; (4) that he was

accorded treatment different from that given to a person otherwise

similarly situated who is not a member of his protected group.

See Keys v. Secretary of the Navy, 853 F.2d 1016, 1023 (1st Cir. 1988).

The Commission finds that appellant has satisfied all of the elements

and states a prima facie case of discrimination. Appellant belongs to an

identified protected class, has thirty years of experience in visual arts,

but was not allowed to compete for a promotion to GG-1084-13 because the

DC refused to target him to that grade. Appellant was treated differently

than the Co-worker, a female, who was transferred to the GG-1084 series

notwithstanding her lack of experience in that area, allowed to maintain

her target grade, and promoted to the GG-13 level in that series.

Now that appellant had established a prima facie case of discrimination,

the agency has the burden of production to articulate some legitimate,

nondiscriminatory reason for its action. Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 254 (1981). In opposition to this

appeal, the agency states that the decision to select the Co-worker for

promotion was an internal mission-related action which reflected the

evolving nature of the directorate during that time.

At this point, Appellant bears the burden of establishing that the

agency's articulated reasons are a mere pretext for discrimination.

Appellant can do this either directly, by showing that a discriminatory

reason more likely motivated the agency, or indirectly, by showing that

the agency's proffered explanation is unworthy of credence. Burdine,

450 U.S. at 256. In St. Mary's Honor Center v. Hicks, 509 U.S. 502

(1993), the Supreme Court held that a critical factor for the fact finder

in determining whether, as a matter of law, to find discrimination is

not whether the employer's explanation is credible, but whether it is

persuaded by the complainant that it was discrimination that motivated

the employer to act as it did. According to the Court, it is not

sufficient "to disbelieve the employer; the fact finder must believe

the plaintiff's explanation of intentional discrimination." Id. At 519.

In a non-selection case, pretext may be demonstrated in a number of ways,

including a showing that an appellant's qualifications are observably

superior to those of the selectee. Bauer v. Bailer, 647 F.2d 1037, 1048

(10th Cir. 1981)

Appellant alleges that he was better qualified for the VIS GG-1084-13

than the Co-worker because he had thirty years of experience in visual and

graphic arts, whereas the Co-worker had experience in writing and editing.

He alleges that he was intentionally prevented from competing for the

promotion in the VIS series by agency management when the agency refused

to increase his target grade to a GG-13, thus leaving the Co-worker with

no competition. The evidence of record supports appellant's allegations.

The Commission finds that several facts support an inference of

discrimination based on sex. The Supervisor made statements to the

EEO Counselor regarding the DC's favoritism to females, her desire to

promote the Co-worker, and her instructions to transfer the Co-worker

to appellant's series, acknowledging that appellant could not compete

with the Co-worker. An agency witness testified that the Co-worker was

transferred to the GG-1084 job series even though it was incompatible with

her experience and work so that she would not have to participate in a new

certification process for promotion in the GG-1083 series. The agency

produced no witnesses to explain why the Co-worker did not perform VIS

work after her transfer to the VIS series or how she maintained her target

to grade GG-13 after switching series. The agency failed to explain why

appellant's target grade was not increased to GG-13, or why he was told

that any increase in his target grade would require an evaluation of his

credentials whereas the Co-worker's credentials were not evaluated.

CONCLUSION

Based upon a careful review of the record, and for the foregoing reasons,

it is the decision of the Commission to REVERSE the agency's finding of no

discrimination. To remedy its violation of Title VII of the Civil Rights

Act, the agency shall comply with this decision and the Order below.

ORDER (D1092)

The agency is ORDERED to take the following remedial action:

1. The agency is ORDERED to promote appellant to the position of Visual

Information Specialist, GG-1084-13 retroactive to the date that the

Selectee was promoted to GG-1084-13. The agency is also ORDERED to

change the date of appellant's within grade increases in conjunction

with this promotion to coincide.

2. The agency shall pay to appellant back pay for the promotion and the

change in within grade increases. Appellant is ORDERED to cooperate with

the agency in this regard.<4>

3. Reasonable attorney's fees shall be awarded in accordance with 20

C.F.R. �1614.501(e).

The agency shall determine the appropriate amount of back pay

(with interest) and other benefits due appellant, pursuant to 29

C.F.R. �1614.501, no later than sixty (60) calendar days after the date

this decision becomes final. The appellant shall cooperate in the

agency's efforts to compute the amount of back pay and benefits due,

and shall provide all relevant information requested by the agency.

If there is a dispute regarding the exact amount of back pay and/or

benefits, the agency shall issue a check to the appellant for the

undisputed amount within sixty (60) calendar days of the date the

agency determines the amount it believes to be due. The appellant may

petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due appellant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Missile and Space Intelligence

Center copies of the attached notice. Copies of the notice, after being

signed by the agency's duly authorized representative, shall be posted

by the agency within thirty (30) calendar days of the date this decision

becomes final, and shall remain posted for sixty (60) consecutive days,

in conspicuous places, including all places where notices to employees are

customarily posted. The agency shall take reasonable steps to ensure that

said notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

ATTORNEY'S FEES (H1092)

If appellant has been represented by an attorney (as defined by

29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. �1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

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 this

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 (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. 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 this 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 this 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 this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. In the alternative,

you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR

DAYS of the date you filed your complaint with the agency, or filed your

appeal with the Commission. 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.

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:

Oct. 1, 1999

_________________ _______________________________

DATE Carlton Hadden, Acting Director

Office of Federal Operations

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated _________ which found that a

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., has occurred at this facility.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect

to hiring, firing, promotion, compensation, or other terms, conditions

or privileges of employment.

The Department of Defense, Defense Intelligence Agency, Missile and Space

Intelligence Center, Redstone, Alabama, supports and will comply with

such Federal law and will not take action against individuals because

they have exercised their rights under law.

The Department of Defense, Defense Intelligence Agency, Missile and

Space Intelligence Center, Redstone, Alabama, has been found to have

discriminated against an employee by not allowing him to compete for a

promotion for which he was well qualified. The agency has been ordered

to retroactively promote the employee as a result of the discrimination,

and pay back pay. The Department of Defense, Defense Intelligence

Agency, Missile and Space Intelligence Center, Redstone, Alabama, will

ensure that officials responsible for personnel decisions and terms and

conditions of employment will abide by the requirements of all Federal

equal employment opportunity laws and will not retaliate against employees

who file EEO complaints.

The Department of Defense, Defense Intelligence Agency, Missile and Space

Intelligence Center, Redstone, Alabama, will not in any manner restrain,

interfere, coerce, or retaliate against any individual who exercises his

or her right to oppose practices made unlawful by, or who participates

in proceedings pursuant to, Federal equal employment opportunity law.

_____________________________

Date Posted: _____________________

Posting Expires: __________________

29 C.F.R. Part 1614

1 The promotion was effective in January 1996.

2 Appellant states that managers told him he could not be promoted to a

GG-13 because he was only targeted to a GG-12. The Co-worker was targeted

to GG-13 when she was a Writer, GG-1083. Manager told appellant that the

Co-worker took the target grade with her when she was switched to GG-1084.

Nothing in the record confirms that an employee takes a target grade

with them when they transfer between series.

3 Appellant alleges that his second line manager, the Directorate Chief

(DC) intentionally refused to increase his target grade to a GG-13.

4 Appellant has not sought compensatory damages in this matter.