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.