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