0120091253
06-03-2009
Linton C. Browning, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Linton C. Browning,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120091253
Agency No. 084196001104
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 19, 2008 final decision concerning
his equal employment opportunity (EEO) complaint alleging 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 Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Complainant alleged that the agency discriminated against
him on the bases of race (Black), national origin (African-American),
sex (male), and age (56) when: a) upon returning from an overseas
assignment, he was transferred into the position of Mid-South Region
District Operations Manager without being informed the position was
temporary; b) his request for salary code change went unanswered; c)
he was removed from the position of Mid-South Region District Operations
Manager and told the position was temporary and would be abolished; and d)
the position was later announced and filled by a younger, white female.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Consistent with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
In its final decision, the agency found no discrimination. The agency
determined that management had cumulatively recited legitimate,
nondiscriminatory reasons for its actions. Management explained that the
Navy Command Exchange (NEXCOM) policy is to place associates returning
from overseas assignments into positions at the same grade and pay
level as they occupied while out of the country. Due to a business
decision of the District Manager, complainant was placed into a position
at a higher salary code than the position he had occupied in Europe.
Once this fact was confirmed, complainant received a promotion and salary
increase without having to go through a competitive selection process.
Complainant was even allowed to
retain this higher salary code, and the pay rate associated with the
code, when he was returned to a position that was equivalent to the one
he occupied in Europe.
Management emphasized that complainant was asked to perform the duties of
District Operations Manager upon his arrival in the Mid-South District
based on a determination of the District Manager of the business needs
of the district at the time. The new District Manager later determined,
in part due to agency-wide direction, that the business would be better
served by assigning complainant to the position of General Manager
of NEX Whiting Field and assigning the former General Manager at NEX
Whiting Field to the position of District Services Manager (essentially
complainant's prior position) on a full time basis.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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).
On appeal, complainant questions, inter alia, why he was not informed that
the District Operations Manager position was only temporary. However, as
the agency asserted in its appeal brief, complainant's claim that he was
never informed of the temporary nature of the District Operations Manager
position is irrelevant. NEXCOM policy is that all exempt employees
are subject to transfer at any time, essentially making any specific
assignment temporary. Complainant acknowledged the existence of this
policy and he had agreed to be bound by it prior to the events at issue
in this appeal. Complainant was ultimately assigned to a position within
the same geographical area and allowed to retain the higher salary code
and rate of pay of the District Operations Manager position. Further,
beyond his bare assertions, complainant has not produced evidence to
show that the agency's explanations are a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
June 3, 2009
__________________
Date
2
0120091253
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091253