01993938gotto
01-11-2001
Kathleen Gotto, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Kathleen Gotto v. Air Force
01993938
January 11, 2001
.
Kathleen Gotto,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01993938
Agency No. EP1598010
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD), concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against based on sex (female), when she was reassigned from a Procurement
Analyst, GS-1102-12, position to a Contract Specialist, GS-1102-12,
position.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Procurement Analyst in the 50th Contracting Squadron at Schriever
Air Force Base in Colorado. On December 17, 1997, her first-level
supervisor informed her that she was being reassigned to a Contract
Specialist position in the Operations and Maintenance Services Flight,
effective January 18, 1998. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on March 19, 1998. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an
EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final agency decision.
Supervisor A (male), complainant's third-level supervisor, indicated that
he made the decision regarding complainant's reassignment, and that his
decision was not motivated by gender-based discrimination. He stated
that he based his determination on the needs of the organization and
the demands of the mission. More specifically, Supervisor A explained
that he had to fill a supervisory contract specialist GS-12 position,
and asked Employee A (male) and then, upon Employee A's declination,
asked Employee B (male) to consider accepting the position. Employee B
accepted, leaving the Contract Specialist position for assignment to
complainant. Supervisor A further stated that he had to place Employee
C (male), a procurement specialist, who had no recent experience
as a contract specialist. In Supervisor A's view, it was in the
organization's best interest to reassign the complainant, who had recent
contracting experience, to the Contract Specialist position and assign
Employee C to the Procurement Analyst position. Supervisor B (female),
complainant's second level supervisor, agreed with the third-level
supervisor and acknowledged recommending the reassignment actions,
including complainant's reassignment. Supervisor C (male), complainant's
first level supervisor, indicated that Supervisors A, B, D (male), and he
decided by consensus to reassign complainant to the Contract Specialist
position. In his view, complainant's gender had nothing to do with
the decision to reassign her, and the decision was made because it was
the best move for the squadron and for the complainant. Supervisor C
further emphasized that complainant was the only GS-12 qualified and
available to fill the Contract Specialist position, and that Employees A
and B were offered reassignment (as distinguished from being ordered),
because it entailed supervisory duties, not because of their gender.
Supervisor D concurred that the reassignments were based on the needs of
the organization and the qualifications and abilities of the employees.
Complainant attempted to show pretext by showing that Employee C could
have been assigned to the vacant Supervisory Contract Specialist position,
but instead the agency chose to assign him to the procurement position
occupied by complainant. Complainant further pointed out that in the
past, employees brought into the organization were placed in vacant
positions, thus avoiding displacement of current employees. Complainant
also pointed out that Employees A and B were given the option to accept
or decline their proposed reassignments, and that she was not given the
opportunity to decline her reassignment.
In its FAD, the agency assumed that complainant had established
a prima facie case. The agency, however, articulated a legitmate,
nondiscriminatory reason for its action, i.e., the needs and demands of
the organization. The FAD then found that complainant failed to show
that the articulated, legitimate, nondiscriminatory reason for its action
was pretext. The FAD concluded that the agency did not discriminate
against complainant based on sex.
On appeal, complainant argues that Employee C had recent contracting
experience, and that as a procurement analyst, Employee A held a $1
million contracting warrant as a contracting officer, in addition to
functioning as a procurement analyst for the Headquarters Air Force Space
Command, and had worked on $180 million and $280 million contracts. On
the other hand, complainant argues that she had not been a contract
specialist since the fall of 1994, and thus, in her view, did not
have recent contract experience. Accordingly, complainant suggests
that the agency's articulated nondiscriminatory reason was false.
Complainant further argues that Employee A was given the opportunity to
accept or reject reassignment, while she was not. Finally, complainant
emphasizes that in her 4-1/2 years at Schriever, she had never before
seen a situation where an individual was forced out of his or her position
to fill another vacancy in the office.
The agency replied that Supervisor A was not aware of Employee C's prior
contract officer responsibilities, and that Employees A and B were given
the opportunity to accept or reject the position offered them because
they were going from a non-supervisory position to a supervisory position.
The agency further emphasizes that complainant's reassignment was dictated
by the needs of the organization, and that complainant was advantaged
by the reassignment.
FINDINGS AND ANALYSIS
In general, claims alleging disparate treatment under Title VII are
examined under the tripartite analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). A complainant must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited reason was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
After the agency has offered the reason for its action, the burden returns
to the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual, that is, it was not the true
reason or the action was influenced by legally impermissible criteria.
Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
In order to establish a prima facie case of discrimination, complainant
may show that she is a member of a protected group and that he was
treated less favorably than other similarly situated employees outside
her protected group. See Potter v. Goodwill Industries of Cleveland,
518 F.2d 864, 865 (6th Cir. 1975). Complainant may also set forth
evidence of acts from which, if otherwise unexplained, an inference of
discrimination can be drawn. Furnco, 438 U.S. at 576.
Although the initial inquiry of discrimination usually focuses on whether
the complainant has established a prima facie case, following this order
of analysis is unnecessary when the agency has articulated a legitimate,
nondiscriminatory reason for its actions. See Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990). In this case, even
assuming, arguendo, that complainant has established a prima facie case,
we find that she, nevertheless, has failed to prove discrimination.
We find that the agency articulated a legitimate, nondiscriminatory
reason for her reassignment, i.e., the needs and demands of the
organization.<2> It is thus the complainant's burden to establish
by the preponderance of the evidence (more likely than not), that the
agency's articulated nondiscriminatory explanation for its action was
a pretext for discrimination. In the Commission's view, complainant
has failed to meet her burden to show that the agency's articulated
nondiscriminatory explanation was pretext.
Complainant essentially argues that Employee C had significant and recent
contracting experience, and that he was a contracting officer, who could
have filled the Contract Specialist position complainant was assigned.
However, the agency explained that Supervisor A did not know of Employee
C's prior contracting experience. In addition, complainant has not
presented any evidence to support a finding that Employee C could
have met the needs and demands of the agency better than complainant
by being assigned to the Contract Specialist position instead of the
Procurement Analyst position. Even if Employee C could have better
filled the Contract Specialist position, a finding of liability is
not necessarily compelled, although the fact finder could decide to
infer discrimination, to the extent the evidence showed the agency's
articulated reasons were untrue. See Commission's Enforcement Guidance
on St. Mary's Honor Center v. Hicks at 6 (April 12, 1994). Ultimately,
the complainant has the burden to show by a preponderance of the evidence
that the agency's actions were motivated by discrimination. With respect
to Employee A's opportunity to reject the proposed reassignment, even
complainant appears to acknowledge that due consideration was given to
his seniority. In addition, the agency pointed out that the position
involved was a supervisory position, whereas complainant's position was a
non-supervisory position; this distinction would apply equally to Employee
B being given the option to choose whether to accept his reassignment.
The Commission can not second guess an employer's business decisions but
can focus only on an employer's motivation for such decisions. Burdine,
450 U.S. at 259. In the case before us, we note that complainant was
reassigned at the same grade in the same job classification series,
GS-1102. There has been no showing of animus against complainant or any
other person on the basis of sex (female) by the agency at complainant's
location. It also appears that complainant's supervisors, one of whom
was female, unanimously concurred that complainant's reassignment
was dictated by the needs and mission of the agency. The Commission
accordingly finds that complainant failed to present evidence that more
likely than not, the agency's articulated reason for its action was a
pretext for discrimination.
CONCLUSION
We AFFIRM the agency's findings of no discrimination. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and evidence not specifically addressed
in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 11, 2001
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The agency also indicated that the assignment to the Contract Specialist
position was an advantage to the complainant. Obviously, complainant
disagreed by filing this complaint, and to the extent this was an
articulated reason by the agency, it would not be worthy of belief.