Ken Glasgow, Complainant,v.Bruce Babbitt, Secretary, Department of Interior, Agency.

Equal Employment Opportunity CommissionMar 30, 2000
01983534 (E.E.O.C. Mar. 30, 2000)

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.