01983534
03-30-2000
Ken Glasgow, Complainant, v. Bruce Babbitt, Secretary, Department of Interior, Agency.
Ken Glasgow v. Department of Interior
01983534
March 30, 2000
Ken Glasgow, )
Complainant, )
) Appeal No. 01983534
v. ) Agency No. FNP96110
)
Bruce Babbitt, )
Secretary, )
Department of Interior, )
Agency. )
)
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Black), national origin (Caribbean-West Indian), color
(Black), reprisal (EEO activity),<1> and age (48), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq.<2> The appeal is accepted
in accordance with EEOC Order No. 960.001. For the reasons that follow,
the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as a GS-7 Audio-Visual Technician with the agency's National Park Service
at its Statute of Liberty and Ellis Island facilities in New York.
Complainant claims that the agency discriminated against him on the above
bases when it denied his request to up-grade his position to a GS-11,
similar to an up-grade received by two White co-workers. Complainant
additionally contends that minorities disproportionally fail to receive
promotions, arguing that this is evidence of a pattern of intentional
discrimination which supports his instant disparate treatment claim,
and also that his well-known advocacy in the EEO process on behalf of
these minorities was also a factor hindering his promotion. Furthermore,
complainant argues that in his many years of employment with the agency,
he has never received a promotion or an up-grade to his position, despite
his superior experience, training, and education, which he attributes
to animus towards his minority status, age, and his involvement in the
EEO process.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint. At the conclusion of
the investigation, the agency issued its FAD, finding no discrimination.
The FAD concluded that complainant failed to establish a prima facie case
of discrimination on any of his alleged bases because he presented no
evidence that similarly situated individuals not in his protected classes
were treated differently under similar circumstances. Specifically,
the FAD found that the two identified co-workers were not similarly
situated to complainant because they held supervisory curator positions
(GS-9 Supervisory Museum Curator), whereas complainant held a technical
type position involving equipment maintenance and operation with no
supervisory or managerial duties. The FAD additionally concluded that
even if complainant had established a prima facie case, the agency
articulated legitimate nondiscriminatory reasons for its decision not
to up-grade complainant's position based on an independently conducted
audit which revealed that the position was properly graded as a GS-7.
On the other hand, when the curator positions were audited, a significant
accretion of duties were identified sufficient to up-grade the positions
from GS-9 to GS-11. The FAD then rejected complainant's pretext
arguments, finding that he failed to show that he was preforming work
warranting an up-grade to his position, or that management was motivated
by discriminatory animus when it denied his request for an up-grade.
In his two appeal statements, complainant contends that the agency
failed to consider a number of his arguments, most importantly his
statistical evidence demonstrating that minorities disproportionately
fail to receive promotions. Specifically, complainant argues that his
statistical evidence is highly probative because it shows that, dating
back to 1993, African Americans made up 20 percent of all employees,
but received only 7.3 percent of all promotions. He further argues
that he has been victimized by this "pattern of discrimination" because
he has never received a promotion, and that this evidence "viewed as a
whole" establishes discrimination. The agency responds by challenging
complainant's statistical analysis, arguing that such a comparison is
only meaningful when it addresses a disparity within a certain type of
occupation, and that the statistics for complainant's occupation do not
reflect discrimination against Black workers in the rate of promotions.
Complainant rebuts this position, arguing that the agency used the wrong
classification (administrative) for complainant's occupation, and argues
that his occupation should be included with that of the museum curators
because they perform similar work regarding the museum exhibits.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976), the Commission agrees with the agency that complainant
failed to establish a prima facie case of race, national origin, color,
or age discrimination. We also find that he failed to establish a prima
facie case of reprisal because he failed to present sufficient evidence to
demonstrate a causal nexus between his EEO activity and his non-promotion.
In reaching this conclusion, we note that complainant's position of
Audio-Visual Technician has been audited several times over a period of
years, and it has never been assessed beyond the GS-7 level. Moreover,
the record shows that no one who has held this position has ever received
an up-grade beyond a GS-7, and this includes individuals both within and
outside of complainant's protected classes. According to the testimony
of several agency officials, the Audio-Visual Technician positions are
"dead end jobs."
Regarding complainant's statistical evidence, we concur with the agency's
assessment that promotion rates for all positions at the two facilities is
not the correct analysis, but that it must be limited to a class of jobs.
Wilson v. Department of Interior, EEOC Appeal No. 01973516 (January 12,
2000). As noted above, the agency chose to use an "administrative class"
of jobs, and complainant used the "museum curator class" of jobs, each
reaching a different result. We find that neither classification is
appropriate in this instance, because complainant's position consists
of unique duties as compared to these classes of jobs, and that the
Audio-Visual Technician position did not provide for promotion beyond
the GS-7 level, which is the level at which complainant was hired.
Accordingly, we find that the statistical evidence is insufficient to
establish a prima facie case of discrimination. Furthermore, complainant
has failed to submit evidence that he applied for positions in other job
classifications having promotion potential, and two agency officials
testified that they encouraged complainant to do this, especially
regarding the Ranger classification, where most of the promotions during
the pertinent period occurred. We find that because the record clearly
establishes that complainant's position is not graded beyond a GS-7,
and because complainant submits no evidence that he tried to obtain
a promotion in another job classification, his failure to receive a
promotion during his employment with the agency is not probative, and
is insufficient to establish a prima facie case of discrimination on
any of complainant's alleged bases.
Therefore, 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, we AFFIRM the FAD.
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:
March 30, 2000
Date Carlton M. 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
1Although the FAD did not include reprisal as a basis, we will now consider
it because complainant raised it with both the EEO counselor and
investigator, and submits statements and evidence in support of his reprisal
claim.
2On 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.