Kenneth Bumpass, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 20, 2003
01A10787 (E.E.O.C. Mar. 20, 2003)

01A10787

03-20-2003

Kenneth Bumpass, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.


Kenneth Bumpass v. Department of the Navy

01A10787

March 20, 2003

.

Kenneth Bumpass,

Complainant,

v.

Hansford T. Johnson,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01A10787

Agency Nos. DON-95-53824-002; DON-95-53824-003

Hearing Nos. 340-98-3402X; 340-98-3403X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning his equal employment opportunity (EEO) 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., and the

Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d) et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission affirms the agency's final order.

The record reveals that complainant, a Civilian Personnel Officer at the

agency's facility in Guam filed formal EEO complaints on April 6, 1995,

and September 11, 1995, alleging that the agency discriminated against

him on the bases of sex (male) and prior protected EEO activity when:

(1) by letter dated December 27, 1994, the Naval Surface Force,

U.S. Pacific Fleet Command recommended that his position be classified

as a Personnel Director GS-201-14, instead of GS-15;

on September 1, 1994, the agency delayed forwarding and processing his

position description;

on September 15, 1994, the agency misrepresented the �population

serviced� element of his classification materials;

by letter dated March 14, 1994, the agency gave direction to counsel

him about safeguarding confidential and sensitive information;

by letter dated March 31, 1994, the agency requested a review and status

report on problem areas in his office; and

on an unspecified date two of his subordinates were �highly recommended�

for the Human Resources Management Award for Excellence, while his

nomination was merely forwarded.<1>

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge. Following a hearing, the Administrative Judge

issued a decision finding no discrimination. The agency's September

28, 2000 final order implemented the Administrative Judge's decision.

It is from this final order that complainant now appeals.

BACKGROUND

Complainant has worked for the agency since 1972. In 1991, complainant

became a personnel officer, supervising the facility's human resources

staff. In 1993, complainant publicly supported one of his subordinate

employees' EEO complaint. The subordinate employee sought EEO counseling

when she became aware that a coworker received a promotion/upgrade.

The agency subsequently required the human resources staff to be trained

in keeping promotion information confidential. In 1994, complainant

unsuccessfully attempted to have his position upgraded to the GS-15

level. Separately, the agency cited complainant and his staff with poor

performance in processing retirement claims.

ANALYSIS AND FINDINGS

Standard of Review

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings

by an Administrative Judge will be upheld if supported by substantial

evidence in the record. Substantial evidence is defined as �such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.� Universal Camera Corp. v. National Labor

Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding

regarding whether or not discriminatory intent existed is a factual

finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).

An Administrative Judge's conclusions of law are subject to a de novo

standard of review, whether or not a hearing was held.

Disparate Treatment

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

He must generally establish a prima facie case by demonstrating that

he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

The agency has articulated legitimate nondiscriminatory reasons for the

challenged actions.

We turn first to complainant's assertion that the agency discriminated

against him when it classified him as a Personnel Director GS-201-14,

instead of at the GS-15 grade level. The record establishes that the

authority to classify Civilian Personnel Officer positions in the

U.S. Department of the Navy was centralized in August 1990, at the

Office of Civilian Personnel Management (OCPM). The OCPM assigned a

Position Classification Specialist to review complainant's functional

responsibilities. Using the General Schedule Supervisory Guide,

the Specialist assigned points based upon the nature of complainant's

position. This point system was designed to measure various factors,

including the level of authority and responsibility involved, the size of

workforce served, environmental elements, and the operational character

of the program. Notably, this point system is utilized when classifying

all Personnel Director 201 series positions. Using this point system,

the specialist assigned complainant a total score of 4005 points which

was lower than the 4055 threshold for a GS-15 grade classification.

There is no evidence that the OCPM Classification Specialist, who worked

in a separate duty location, had knowledge of complainant's protected

EEO activity.

Ultimately, complainant appealed his position classification to

the U.S. Office of Personnel Management, who sustained the agency's

classification at GS-201-14. Complainant also argues that the agency

misrepresented the �population serviced� element of his classification

materials. While it is clear that the �population serviced� element is

a factor in reaching an ultimate determination on grade classification,

there is no evidence in this record that the agency misrepresented

the figure. 4500 employees was the number advanced by the agency as

the population serviced by complainant's position. This number was

generated by the Commanding Officer. Using a different source, the

Central Personnel Data file, the U.S. Office of Personnel Management,

came very close to the 4500 population serviced figure reported by

the agency. The agency explains that the difference in figures would

not have resulted in a change in the GS-14 classification.

Complainant argues that he was discriminated against when it took sixty

days for his reclassification package to be forwarded to the appropriate

officials. Regarding the delay in forwarding complainant's classification

request, the agency explains that the responsible official was on

official travel, and that she later sustained a family tragedy which

slowed the processing of complainant's package. The agency explains

that these unfortunate and unpredictable events interfered with the

efficient forwarding of complainant's reclassification materials.

Complainant also complains that he was discriminated against when he did

not receive a ringing endorsement for the Human Resources Management Award

for Excellence, while two of his subordinates were heartily recommended

for the award. Complainant's Commanding Officer reports that he recommend

complainant for the award, but that he did not give complainant a

ringing endorsement because of the manner in which complainant pursued

his reclassification request. Specifically, the Commanding Officer

reports that complainant unscrupulously modified his position description

before submitting it to the Office of Personnel Management. The agency

explains that, given these circumstances, a ringing recommendation for

a human resources management award was inappropriate.

Complainant argues that he was retaliated against when, by letter

dated March 14, 1994, the agency gave direction to counsel him about

safeguarding confidential and sensitive information. The record

reveals that complainant supported an EEO complaint filed by one of

his subordinate employees. The subordinate employee first sought

EEO counseling when she became aware that another employee received

a promotion/upgrade. Following the complaint, complainant's superiors

became concerned that sensitive information concerning civilian personnel

issues, i.e., information about promotions and upgrades, were not being

adequately safeguarded. As a result, the agency ordered counseling

for the entire human resources staff relating to safeguarding official

information. The agency explains that it has a legitimate management

interest in ensuring that the human resources staff maintains the

confidentiality of personnel records.

Complainant also alleges that he was discriminated against when on March

31, 1994, the agency requested a review and status report on his office's

record of poor processing of retirement claims. The agency explains that

the review and status reports it ordered were required in response to

poor retirement claims processing ratings of July and September 1993.

The agency points out that it believes that poor retirement claims

processing is a chronic problem with the complainant's office, and that

complainant's successor received a similar letter in January 1991.

Complainant has failed to demonstrate that the agency's explanations are

pretexts for discrimination and/or retaliation, or that they are otherwise

unworthy of belief. The Commission finds that the Administrative Judge's

findings of fact are supported by substantial evidence in the record and

that the Administrative Judge's decision properly summarized the relevant

facts and referenced the appropriate regulations, policies, and laws.

We find no evidence that the agency intentionally discriminated against

complainant on the basis of his sex and/or his participation in protected

EEO activity.

Equal Pay Act

We note that claims of wage discrimination based on sex can also be

analyzed under the EPA. The EPA was enacted to remedy the problem of

sex-based wage discrimination. In essence, it requires that employees

doing equal work should be paid equal wages, regardless of sex.

To establish a violation of the EPA, complainant must show that he

received less pay than an individual of the opposite sex for equal work,

requiring equal skill, effort, and responsibility, under similar working

conditions within the same establishment. 29 C.F.R. Part 1620; Arnold

v. Department of Treasury, EEOC Appeal No. 01960490 (July 28, 1998).

In support of his EPA claim, complainant compares himself with two

GS-201-15 female personnel officers. In both cases, complainant fails

to demonstrate that his comparators perform their jobs under �similar

working conditions.� 29 C.F.R. � 1620.18. While they share the same

title of personnel officer, the record evidence demonstrates that when

viewed through the federal management standard, complainant's comparators

perform at a GS-15 level which corresponds to their level of authority

and responsibility, size of workforce served, environmental elements,

and the operational character of the program. In this respect, we find

that complainant failed to establish that he was performing equal work,

requiring equal skill, effort, and responsibility. Moreover, the pay

differential is justified by the gender neutral, federal personnel

classification system.

CONCLUSION

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 agency's

final order.

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

March 20, 2003

__________________

Date

1 The Commission, twice, remanded the agency's

procedural dismissals of portions of this complaint. Bumpass v. Navy,

EEOC Appeal No. 01955810 (August 27, 1996); Bumpass v. Navy, EEOC Appeal

No. 01962720 (May 19, 1997).