01A20677
03-05-2003
Keith A. Stith, Complainant, v. Joseph Allbaugh, Director, Federal Emergency Management Agency, Agency.
Keith A. Stith v. FEMA
01A20677
03-05-03
.
Keith A. Stith,
Complainant,
v.
Joseph Allbaugh,
Director,
Federal Emergency Management Agency,
Agency.
Appeal No. 01A20677
Agency No. 00-030
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of race (Black) and sex (male) in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. For the reasons stated herein, the agency's FAD is affirmed.
Complainant has been employed by the agency since 1982. He has been in
his present position of Systems Accountant since 1989. Complainant was
promoted to GS-13 in the Financial Systems Division, effective March
10, 1991. In August 2000, believing he was a victim of discrimination,
complainant filed a complaint alleging that the agency discriminated
against him when (1) on April 10, 2000, his scheduled meeting with the
Chief Financial Officer, to discuss concerns regarding the denial of his
promotion, was unfairly cancelled and not rescheduled; (2) on April 3,
2000, he learned that he was not selected for the position of Supervisory
Systems Accountant; and (3) he was denied an opportunity for promotion
although he was highly qualified for the job, and management failed to
make the same promotional (sic) opportunity available to him based on
the level of work performed in comparison to similarly situated coworkers
in the organization who were promoted.
Following an investigation of complainant's complaint, he was informed of
his right to choose either a hearing before an EEOC Administrative Judge
(AJ) or an immediate FAD. Complainant initially requested a hearing
but later withdrew that request. The agency issued a FAD finding no
discrimination.
Regarding issue (1), the record indicates that complainant applied
for the position of Supervisory Systems Accountant (GS-14). He was on
the Certificate of Eligibles (the list) with another person. The list
was presented to A-1 (Black female), the Acting Deputy Chief Financial
Officer, with a recommendation by A-2, the Director Financial Systems
Division, that complainant be selected. A-2 was complainant's immediate
supervisor. A-1, however, decided not to make a selection. She returned
the list to Personnel on March 27, 2000. A-2 informed complainant on
April 3, 2000.
Complainant requested a meeting with A-3, the Chief Financial Officer.
A-3's secretary supposedly scheduled the meeting for April 12. A-3,
however, indicated that he never agreed to a meeting; therefore, on
April 10, 2000, complainant was informed that it would not be held.
A-3 maintained that he did not agree to the meeting because he needed
time to adequately prepare for it. Shortly thereafter A-3 left the
position of Chief Financial Officer and was replaced by A-1. According to
complainant, he was never told why the meeting was cancelled, or why it
was not rescheduled.
Regarding issue (2), the record indicates that complainant maintained that
he was not selected for the position of Supervisory Systems Accountant
(the Position) because of his race and sex. The record indicates that,
on August 30, 1998, complainant was given a temporary promotion to the
position of Branch Chief, Supervisory Systems Accountant, GS-14, for the
proposed Systems Administration Branch. This temporary promotion was
not to exceed a period of 120 days. On December 28, 1998, complainant's
temporary promotion was terminated and he was returned to his GS-13
position. The duties and responsibilities of Branch Chief position
that complainant held reverted to A-2. The position of Supervisory
Systems Accountant was advertised in September 1999 and re-advertised
in December 1999. As previously indicated, complainant and C-1 were
the only individuals who made the eligibility list.
The record indicates that the position of Supervisory Systems Accountant
was developed to function as a Branch Chief for the proposed Systems
Administration Branch within the Division of Financial Services.
A-1 testified that she decided to delay filling the Position until
she could decide whether the new Branch was going to be permanent.
According to A-1, the posting of the vacancy occurred during a time
when management was investigating ongoing problems that existed in the
Financial Services Division. A-3 asked A-1 and the Deputy Chief Financial
Officer, B-1, to investigate. Prior to B-1's departure from the agency,
plans were made to reorganize the Financial Services Division and to move
A-2 from his position. A-1 stated that �if another reorganization [took]
place in the Financial Services Division, it would change the present
structure, therefore an establishment of a new branch would be premature.�
A-3 testified that �[p]roblems with [the Financial Services Division]
continue to exist and we are looking at alternatives to correct these
problems, the decision not to fill the vacancy is part of the equation
we are looking at to correct the problem.� B-1 testified that he was
�[n]ot surprised that [A-1] did not make a selection for the position
because of the overall problems in the division. I am not attributing
these problems to [complainant], however, there is an overall management
problem that exists in the unit.�
With respect to issue (3), complainant maintained that he was denied
an opportunity for promotion even though he was highly qualified
for the job. He also accused management of failing to make the same
opportunities available to him that were provided to certain coworkers
who were subsequently promoted. The record indicates that, before
his temporary promotion to GS-14, complainant was made a Team Leader,
and performed duties at the GS-14 level. Complainant indicated that he
was not compensated at the GS-14 level for these duties and that other
employees were not required to perform duties above their grade prior
to being promoted.
The agency disputes complainant's claim that it denied him promotional
opportunities. According to the agency, complainant was provided with a
�growth opportunity� when he was asked to lead a team consisting of four
others that would implement a new financial system. Likewise, when a
new branch was proposed as part of the reorganization of the Financial
Services Division, complainant was selected for a temporary promotion
as Acting Branch Chief. With the exception of the Supervisory Systems
Accountant position, the record does not indicate that complainant ever
applied for any other GS-14 position with the agency.
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to
the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for its discrimination. Id. at 804.
Because the agency articulated legitimate, nondiscriminatory reasons
for each of the three issues listed above, we may proceed directly to
determining whether complainant satisfied his burden for showing pretext.
Haas v. Department of Commerce, EEOC Request No. 05970837 (July 7,
1999)(citing U.S. Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-14 (1983)). Complainant may do this in one of two ways,
either by showing that a discriminatory reason more likely motivated
the agency, or by showing that the agency's proffered explanation is
unworthy of credence. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 256 (1981). Essentially, the complainant must persuade the
fact finder that the agency's articulated reasons were false and that
its real reason was discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 515 (1993).
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. Regarding issue (1), there is no
evidence that complainant's race or sex played a role in A-3's decision
to cancel the meeting with complainant. Even complainant, on appeal,
asks that we �[r]eview this issue in context of the much larger view of
discrimination in this case.� Likewise, complainant did not establish
that the reasons set forth by A-1, A-3 and B-1 for not making a selection
for the Position were not true. Finally, we find that a preponderance
of the evidence does not support complainant's claim that management
failed to make the same promotional opportunities available to him that
were provided to his coworkers. Although he was not promoted to GS-14,
the record indicates that complainant was made a Team Leader, and that
this led to a temporary promotion to GS-14. The record further indicates
that complainant, until the decision was made not to fill the Position,
was regarded as eligible for promotion. We note in this regard his
placement on the list of eligibles.<1>
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, the Commission AFFIRMS the
agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
___03-05-03_______________
Date
1We also note the testimony of A-2 that although complainant was qualified
to be promoted to GS-14, he did not believe that his lack of promotion
was based on his race or sex.