Linda J. Rodriguez, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMay 3, 1999
01973140 (E.E.O.C. May. 3, 1999)

01973140

05-03-1999

Linda J. Rodriguez, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Linda J. Rodriguez, )

Appellant, )

) Appeal No. 01973140

v. ) Agency No. KHOF94798

) Hearing No. 360-95-8304X

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

)

)

DECISION

Appellant filed a timely appeal with the Equal Employment Opportunity

Commission (EEOC or Commission) from a final agency decision (FAD)

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the bases of race (Caucasian), national

origin (Hispanic), and sex (female), in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

Appellant alleges she was discriminated against when: (1) management

failed to upgrade her GS-12 supervisory Management Support Specialist

position to a supervisory GS-13 position; (2) when the Management

Support Specialist position was later upgraded to a supervisory GS-13

position and awarded to a non-Hispanic male; and (3) she was assigned

to a non-supervisory GS-12 Program Manager position on September 7,

1994. The appeal is accepted in accordance with EEOC Order No. 960.001.

At the time this matter arose, appellant was employed as a GS-12

supervisory Management Support Specialist, Aerospace Equipment Management

Directorate, Program Control Division, Strategic Planning Branch, Support

Section, at Kelly Air Force Base. She filed a formal EEO complaint with

the agency on October 31, 1994, alleging that the agency had discriminated

against her as referenced above. At the conclusion of the investigation,

appellant requested a hearing before an EEOC Administrative Judge (AJ).

Pursuant to 29 C.F.R. � 1614.109(e), the AJ declared that there were no

genuine issues of material fact, and issued a Recommended Decision (RD)

without a hearing, finding no discrimination.

According to the record, appellant had been temporarily promoted to the

GS-12 supervisory Management Support Specialist for two years prior to

her assignment to the non-supervisory GS-12 Program Manager position

in September 1994. During this two year period, several unsuccessful

attempts were made to upgrade the Management Support Specialist position

to a permanent GS-13 position. In August 1994, pursuant to a nationwide

reorganization mandate, the agency was required to eliminate �temporary

promotion� positions and reassign these employees to either their prior

positions or an equivalent position. As a result, appellant's Management

Support Specialist position was abolished, and then subsequently

replaced with a GS-13 supervisory Management Support position in order

to place a �surplus� GS-13 white male under the reorganization plan.

Although the agency attempted to allow appellant to compete for this

position, notwithstanding the reorganization mandate, neither she nor the

�surplus� GS-13 white male were placed in the position because they were

both preempted by a Department of Defense Priority Placement candidate.

Appellant was then transferred to the Program Manager position.

In the RD, the AJ concluded that appellant established a prima facie case

of discrimination noting that she was a member of the protected groups

alleged, and that she demonstrated an adverse action by the agency's

failure to upgrade her supervisory Management Support Specialist

position and her subsequent transfer to the non-supervisory Program

Manager position.

The AJ also concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions, namely, that the temporary

promotion position could not be upgraded under personnel regulations,

and the subsequent transfer was mandated by the agency's nationwide

plan for reorganization. The AJ found that the evidence of record

fully and consistently corroborated the agency's articulated reasons,

as did the evidence showing that many attempts were made to both upgrade

appellant's temporary position, and also to allow her to compete for

the newly created GS-13 position.

The AJ additionally concluded that appellant failed to establish

that the agency's articulated reasons were a pretext to mask unlawful

discrimination. Appellant contends that the agency failed to upgrade her

position despite the fact that she supervised more employees than other

GS-13 supervisors. However, the AJ found that the agency's personnel

regulations required that subordinate employees not only be of a certain

number, but also that a certain number had to be GS-12's, in order to

justify a GS-13 supervisor, and that the structure of appellant's position

did not satisfy this criteria. Moreover, the affidavit testimony of the

Personnel Classification Specialist involved in the upgrade attempts

confirmed that the position was properly classified as a GS-12 and

could not be upgraded unless higher level subordinates were added to

its structure. Appellant asserts that the position of a non-Hispanic

male in the same division was augmented with additional higher level

subordinates for the purpose of up-grading it from a GS-12 to a GS-13,

but that management was not responsive to her

requests to restructure her position in the same manner. However, the

AJ found that non-Hispanic male's position had significantly different

functions and responsibilities, and was not comparable to the appellant's

position. We concur with the AJ's finding.

Appellant also argues that the agency's reasons are pretext because in

December 1992, the directorate was reorganized for the purpose of allowing

the transfer of a GM-14 employee from a base that was slated to close, but

that management continued to refuse to upgrade her position. According to

appellant's supervisor, the reorganization plan also included an upgrade

of appellant's position, but it was not approved. Appellant's supervisor

further stated that he decided not to fight the matter because he had

already tried to have appellant's position upgraded within the past year.

Although appellant disputes that an effective structure to support an

upgrade of her position was included in the plan, the AJ found that

there was no evidence to indicate either discrimination or pretext

with respect to the agency's implementation of this plan, and that her

position was not similarly situated to that of the GM-14 transferee.

We concur with the AJ's finding.

Appellant also contends that the agency's reasons for transferring

her to a non-supervisory position were pretext, arguing that it did

not provide the �career broadening� experience necessary for eventual

promotion as alleged by the agency. Appellant further argues that she is

already fully qualified for a promotion to a supervisory GS-13 position,

especially as compared to other GS-13 supervisors. The AJ found that

the record was clear that appellant was considered to be an excellent

employee, and that management's decision to place her in the Program

Management position was a good faith effort to enhance her chances for

eventual promotion. Review of the position description confirms that

it would provide appellant with the type of experience which management

stated she lacked. Because of the reorganization, the agency could not

immediately assign appellant to a position which would have resulted in

a promotion. Therefore, the AJ found that the agency's reasons were not

pretextual and the assignment was not motivated by the discriminatory

intent alleged by appellant. We concur in the AJ's finding.

The agency's FAD adopted the AJ's RD.

On appeal, appellant contends that the AJ erred in invoking 29

C.F.R. �1614.109(e), arguing that summary judgment was inappropriate

because pertinent material facts are in dispute and that a hearing should

have been conducted as requested by appellant.

Pursuant to 29 C.F.R. �1614.109(e)(3), if an AJ "determines upon

his or her own initiative that some or all facts are not in genuine

dispute," he or she may "issue findings and conclusions without holding

a hearing." As indicated in the RD, this section is patterned after the

summary judgment procedure set forth at Rule 56 of the Federal Rules of

Civil Procedure. The United States Supreme Court has stated that summary

judgment is appropriate where the adjudicator determines that no genuine

issue of material fact exists, as governed by the applicable substantive

law. Anderson v. Liberty Lobby, Inc., 466 U.S. 242, 255 (1986). An issue

is genuine if the evidence is such that a reasonable fact-finder could

find in favor of the non-moving party. Oliver v. Digital Equip. Corp.,

846 F.2d 103, 105 (1st Cir. 1988).

In order to avoid summary judgment, the non-moving party, appellant

herein, must produce admissible factual evidence sufficient to demonstrate

the existence of a genuine issue of material fact requiring resolution by

the fact-finder. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986);

Anderson, 477 U.S. at 247-50. The party opposing a properly made motion

for summary judgment may not simply rest upon the allegations contained

in his or her pleading, but must set forth specific facts showing that

there is a genuine issue still in dispute. Id. at 248. In response to

a motion for summary judgment, the fact-finder's function is not to

weigh the evidence and render a determination as to the truth of the

matter, but only to determine whether there exists a genuine factual

dispute. Id. at 248-49.

After a careful review of the record, we find that the AJ properly

determined that there was no genuine issue of material fact in this

case. 29 C.F.R. �1614.109(e)(3). Specifically, we find that appellant

failed to set forth sufficient facts showing that there was a genuine

issue still in dispute. In her written objection to the AJ's notice to

the parties of her intention to issue findings and conclusions without

a hearing, appellant sets forth a review of the Circuit Courts regarding

Summary Judgment and argues that her allegations are true and that summary

judgment is inappropriate. She lists nine purported �material facts in

dispute�, which in turn references an attached �rebuttal affidavit� with

supporting documentary exhibits. Although appellant does present a very

detailed analysis and �rebuttal� of some of the affidavit testimony

offered by the agency's many witnesses, highlighting some possible

discrepancies, and questioning management's motivation and credibility,

she does not present any evidence of a genuine and material dispute,

within the meaning of the law and regulations cited above, as to the

reasons for the agency's actions. On appeal, appellant reiterates this

position, and also further challenges the credibility of the agency's

witnesses. However, the RD indicates that the AJ considered all of the

evidence of record, including appellant's objection and supporting

exhibits, and concluded that no genuine issue of material fact was

presented. Our review of the record confirms that appellant failed to

show a dispute concerning a material fact, such as, for example, the

lack of a reorganization plan, sufficient to sustain her objection to

summary judgment. Therefore, we concur in the AJ's determination and

find that summary judgment was appropriate in this case.

Based on our careful de novo review of the entire record before us, the

Commission finds that the AJ's RD accurately set forth the facts giving

rise to the complaint and the law applicable to the case. The Commission

further concludes that the AJ correctly determined that appellant had

not established, by a preponderance of the evidence, that the agency

discriminated against her as alleged in her complaint. Accordingly,

the Commission herein adopts the AJ's recommended findings of fact and

conclusions of law, and we hereby AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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 the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (Z1092)

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:

May 3, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations