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.