Melvin A. Williams, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 27, 1999
01974690 (E.E.O.C. Oct. 27, 1999)

01974690

10-27-1999

Melvin A. Williams, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Melvin A. Williams, )

Appellant, )

) Appeal No. 01974690

v. ) Agency No. 0411E0090

) Hearing No. 100-95-8016X

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

Appellant filed a timely appeal with this Commission from a final

agency decision (FAD) concerning his complaint of unlawful employment

discrimination on the basis of race (Black), in violation of Title VII

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

Appellant alleges he was discriminated against when, in February 1994:

(1) he was not promoted to the GM-14 Supervisory Traffic Management

Specialist position (Position) to which he was detailed in February 1993,

nor compensated for the time in which he occupied the Position;

(2) he did not receive a Notification of Personnel Action (SF-50) for

the Position;

(3) two persons under his supervision were reassigned in order to

down-grade the Position to a GM-13.

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

For the reasons that follow, the agency's decision is AFFIRMED.

During the relevant time, appellant was a GM-13 Supervisory Traffic

Management Specialist for the Military Traffic Management Command

(Division) located at the agency's Headquarters in Fort Myer, Virginia.

Believing he was discriminated against, as referenced above, appellant

contacted an EEO counselor, and subsequently filed a formal complaint on

September 29, 1994. At the conclusion of the investigation, appellant

requested a hearing before an Equal Employment Opportunity Commission

(EEOC) Administrative Judge (AJ). Pursuant to 29 C.F.R. � 1614.109(e),

the AJ issued a Recommended Decision (RD) without a hearing, finding

no discrimination.

The record reveals that the Division underwent a major reorganization in

February 1993, and appellant was temporarily detailed to the Position.

Three other Supervisory Traffic Management Specialists received similar

details, including one GM-13 (White) and two GM-14s (one Black and one

White). Nine months later, in anticipation of converting the details into

permanent assignments, the agency conducted a desk audit. The desk audit

revealed that the two GM-14's had been assigned duties comparable to a

GM-13 position, while appellant and the other GM-13 had been detailed to

positions having duties commensurate with a SM-14 position. To rectify

the situation, the agency adjusted the staff and duties for each position

so that they would reflect the incoming grades of the four supervisors.

Addressing appellant's first allegation, the AJ concluded that he failed

to establish a prima facie case of race discrimination because he did not

present evidence that someone outside of his protected group was treated

more favorably. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Moreover, the AJ found that appellant's single comparator, the White

GM-13, was treated in an identical manner. The AJ also found that the

agency's decision not to promote or demote the four supervisors as a

corrective measure was consistent with the agency's policy, as was its

decision not to compensate appellant, or the other GM-13, at the GM-14

level during the year they served in the mis-assigned positions. The

AJ also found that appellant failed to produce evidence of pretext,

and that his receipt of a $2000.00 monetary award in appreciation

for his services during this year further belied any finding of

discrimination. Accordingly, the AJ made a finding of no discrimination.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

In considering allegation 2, the AJ again found that appellant failed

to establish a prima facie case because he presented no evidence

that his comparator, the other GM-13, received the SF-50 at issue.

Similarly, regarding allegation 3, the AJ again held that appellant

failed to establish a prima facie case because the record showed that

his comparator was subjected to the same agency action. With respect

to both allegations, the AJ indicated that appellant failed to present

any evidence, comparative or otherwise, to establish an inference of

discrimination, and that the record showed that the agency's actions

were fully consistent with its policies. The AJ additionally found that

appellant presented no evidence to support his several arguments alleging

pretext. Accordingly, the AJ made a finding of no discrimination regarding

both of these allegations. See St. Mary's Honor Center, supra.

The agency's FAD adopted the AJ's RD. On appeal, appellant does not

address issues pertinent<1> to this appeal, and the agency requests that

we affirm its FAD.

After a careful review of the record, the Commission finds that the

AJ's RD summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We note that appellant failed to present

evidence that any of the agency's actions were motivated by discriminatory

animus toward his race. We discern no basis to disturb the AJ's findings

of no discrimination. Therefore, after a careful review of the record,

including appellant's contentions on appeal, the agency's response,

and arguments and evidence not specifically addressed in this decision,

we 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:

October 27, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1Appellant argues

that he actually served for three years in the

Position, and that he is due compensation from

the agency accordingly. He also argues that it

is unfair that the SM-14's were over-compensated,

and he was under-compensated, while serving in

the Position.