Mark F. Kennedy, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionJul 26, 2000
01974427 (E.E.O.C. Jul. 26, 2000)

01974427

07-26-2000

Mark F. Kennedy, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Mark F. Kennedy v. Department of Transportation

01974427

July 26, 2000

Mark F. Kennedy, )

Complainant, )

)

v. ) Appeal No. 01974427

) Agency No. DOT-95-0171

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

______________________________________)

DECISION

INTRODUCTION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from the final agency decision concerning his equal

employment opportunity (EEO) complaint, which alleged discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The appeal is accepted by the Commission in

accordance with the provisions of 64 Fed. Reg 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).<1>

ISSUE PRESENTED

The issue presented is whether complainant has established by a

preponderance of the evidence that the agency discriminated against him

on the basis of sex (male) when upon reassignment in October 1990 to a

position at the Regional Office he was forced to take a down-grade from

GM-15, step 4, to GS-14, step 10.

BACKGROUND

On September 9, 1994, complainant, then an Area Manager, GS-2152-15,

with the agency's Federal Aviation Administration (FAA), commenced EEO

counseling on the above-stated issue. Efforts to resolve complainant's

concerns informally were not successful. On November 21, 1994,

complainant filed a formal EEO complaint setting forth multiple claims

of discrimination, including the sole allegation which had been raised

during counseling. The agency accepted the complaint for investigation.

The statement of the issue accepted was revised several times with input

from complainant. The statement of the issue finally agreed upon was

set forth as follows in a November 7, 1996, letter from the agency to

complainant:

Were you [complainant] discriminated against because of your sex (male)

when upon reassignment to a position at the Regional Office in or around

October 1990, you were forced to take a downgrade to GS-14.

In August 1994, you learned that [Employee A] (female), an individual you

believe to be similarly situated to yourself, was allowed to receive pay

and benefits at the GS-15 level while detailed to the regional Office

beginning in May 1993. Further, you believe that this was a result of

an FAA policy which you believe ensures priority treatment to females

in regard to career advancement; specifically, you cite Notice 3400.34,

Performance Standards for Developing Employees, dated December 13, 1991.

The agency conducted an investigation, provided complainant with a

copy of the investigative report, and advised complainant of his right

to request either a hearing before an EEOC administrative judge (AJ)

or an immediate final agency decision (FAD). Complainant requested,

and was granted, an extension of time in which to review and respond to

the investigative report and elect between a hearing and an immediate

FAD. Thereafter, complainant requested an immediate FAD. On April 14,

1997, the agency issued a FAD finding no discrimination. It is from

this decision that complainant now appeals.

ANALYSIS AND FINDINGS

This case involves a complaint alleging employment discrimination based

on sex. In any proceeding, either administrative or judicial, involving

an allegation of discrimination, it is the burden of the complainant to

initially establish that there is some substance to his or her allegation.

In order to accomplish this burden the complainant must establish a

prima facie case of discrimination. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters,

438 U.S. 567, 576 (1978). This means that the complainant must present

a body of evidence such that, were it not rebutted, the trier of fact

could conclude that unlawful discrimination did occur. The burden then

shifts to the agency to articulate a legitimate, non-discriminatory

explanation for its action. Texas Dept. of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981). In this regard, the agency need only produce

evidence sufficient "to allow the trier of fact rationally to conclude"

that the agency's action was not based on unlawful discrimination.

Id. at 257. Once the agency has articulated such a reason, the question

becomes whether the proffered explanation was the true reason for the

agency's action, or merely a pretext for discrimination. St. Mary's

Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although the burden

of production, in other words, "going forward," may shift, the burden

of persuasion, by a preponderance of the evidence, remains at all times

on the complainant. Burdine, 450 U.S. at 256.

Notwithstanding the agency's analysis, the Commission is not persuaded

that complainant has established a prima facie case of sex discrimination

with regard to being downgraded when he was reassigned to a position

in the Regional Office. Complainant is a member of a protected group

by virtue of his sex (male). However, he has not shown that he was

treated differently than any similarly situated employee outside of his

protected group. See Potter v. Goodwill Industries of Cleveland, Inc.,

518 F.2d 864, 865 (6th Cir. 1975). In order for two or more employees to

be considered similarly situated for the purpose of creating an inference

of disparate treatment, complainant must show that all of the relevant

aspects of his employment situation are nearly identical to those of

the comparative employees whom he alleges were treated differently.

Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985).

In this case, however, complainant is comparing himself, who voluntarily

accepted permanent reassignment to a Regional Office position that he

knew was graded GS-14, to two female employees who, three years later,

were temporarily detailed to various Regional Office positions while

retaining their GS-15 grades. The Commission finds that complainant and

the comparative employees therefore were not similarly situated in all

relevant aspects of their employment. Neither is there other evidence

of record to raise an inference of sex-discriminatory animus at the time

complainant was reassigned to the GS-14 Regional Office position.

Assuming for the sake of argument that complainant had established a

prima facie case of sex discrimination, the agency has met its burden to

articulate a legitimate, non-discriminatory explanation for its actions.

The agency explained that the female comparatives were temporarily

detailed to various Regional Office positions, which allowed them to

retain their grades. Complainant, by contrast, voluntarily accepted

permanent reassignment to a GS-14 Regional Office position, a move which

required him to accept a down-grade from GM-15 to GS-14.<2> The agency

further explained the circumstances of each of the comparatives' details,

proffering legitimate, non-discriminatory reasons for each.

At this point, the question becomes whether complainant has established

that the agency's proffered explanation was not the true reason for its

actions, but was merely a pretext for discrimination. In this regard,

complainant argues that the female comparatives were allowed to accrue the

needed one year of Regional Office time by accepting temporary details,

while male employees were required to take permanent reassignments to get

the one year of time. However, there is no evidence of record to support

a finding that the agency had any such policy regarding the manner in

which employees could accrue Regional Office time. Complainant further

argues that pretext is shown by a notice issued by the agency in January

1991, which informed managers of their affirmative duty to assist female

and minority employees, who were under-represented at the agency, to

develop their Individual Development Plans (IDPs). Even construed in

the manner most favorable to complainant, however, the fact that the

agency directed its managers to assist female and minority employees in

the development of their IDPs does not compel a finding that the agency

discriminated against complainant with regard to the reduction in grade

that was incidental to his reassignment.

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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:

July 26, 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:

__________________________________

Equal Opportunity Specialist Date

1On 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.

2The record reflects that complainant was granted �save pay.�