0120092279
07-14-2009
Michael A. McGuire, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Michael A. McGuire,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120092279
Agency No. MINT-07-0684-F
Hearing No. 570-2008-00811X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 2, 2009 final order concerning his equal
employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On September 30, 2007, complainant filed the instant formal complaint.
Complainant claimed that the agency discriminated against him on the bases
of sex (male), color (dark), and disability (speech impediment) when:
1. on May 22, 2007, he learned that his position, title and series would
not be changed from Computer Assistant, GS-335, to Information Technology
Specialist, GS-2210;
2. on May 22, 2007, he learned that two male peers who allegedly performed
the same duties as him received non-competitive promotions; and
3. on May 22, 2007, he learned that three female peers were paid at a
higher grade.1
Following the investigation into his formal complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On March
16, 2009, the AJ issued a decision by summary judgment in favor of
the agency. On April 2, 2009, the agency fully implemented the AJ's
decision in its final order.
The AJ found that complainant did not establish a prima facie case of
sex and color discrimination. The AJ found that complainant did not show
that other similarly situated employees outside of his protected groups
were treated differently under similar circumstances. Regarding the
basis of disability, the AJ found that complainant failed to establish
a prima facie case of disability discrimination because the evidence
did not indicate that complainant was substantially limited in a major
life activity as defined by the Rehabilitation Act. Nonetheless, the
AJ analyzed complainant's claims and found that the agency articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show were a pretext.2
Regarding claim 1, the record reflects that in May 2004, complainant's
first-level supervisor (S1) attempted to change the job series of
three employees, including complainant's, from Computer Assistant to
Information Technology Specialist without utilizing the competitive
selection process. Complainant's third-level supervisor (S3) stated
that he did not grant S1's request because such action would violate
regulations governing the promotion process. Specifically, S3 stated
"every time we tried to move forward, I was advised I couldn't change
their series without violating the Merit Promotion principles. I was
not trying to keep any of the 3 GS-335s from getting to the 2210;
I was following advice on rules and regulations as detailed by HR."
The record further reflects that later in 2004 and 2005, competitive
vacancy announcements for Information Technology Specialist, GS-2210,
positions were advertised but S3 immediately cancelled them because
they were put forth by subordinate employees who failed to obtain his
approval and did not have the necessary Full Time Employee (FTE) slots.
Furthermore, S3 stated that "none of the positions were filled."
Complainant's second-level supervisor (S2) stated that complainant
accepted the GS-7 in the 355 series without any promotional potential.
S2 further stated that complainant "also needs to understand that he had
to take control of his own career and seek other opportunities in which he
can utilize his skills." S1 stated that complainant "would need to have
a classification desk audit to validate his credentials. In the Federal
Government you cannot give someone a grade because they asked for it.
There are certain rules and regulations that need to be followed."
Regarding claim 2, the record reflects that the named male peers were
hired as Computer Specialists in the 334 job series, and were not hired
in complainant's 335 Computer Assistant job series. The record contains a
copy of the Office of Personnel Management (OPM)'s memorandum dated June
5, 2001, with the subject header "New Job Family Position Classification
Standard for Administrative Work in the Information Technology Group,
GS-2200, and Related Special Rate Schedules." Therein, the OPM issued
the new Information Technology Management Series, GS-2210, standard
while abolishing its predecessor standard which covered the Computer
Specialist Series, GS-334. The record reflects that the named male
peers' 334 job series were simply reclassified as the 2210 job series;
and that the duties, responsibilities and promotion of the 2210 position
remained the same as the 334 position.
Regarding claim 3, the record reflects that the named female peers were
not initially hired as Computer Assistants. Instead, they were hired
in the 318 series. The record further reflects that complainant was
hired as a Customer Service Representative. S1 stated that complainant
and the named female peers were later permanently reassigned as Computer
Assistants in the 335 job series. S1 further stated that complainant and
the named female peers were simply moved "from one strategic business unit
to another," and retained their current pay grade level. S1 stated that
complainant was paid at grade level 7 as a Computer Assistant because
that was his grade level in his prior position, and the named female
peers were paid at grade level 8 as Computer Assistants because that was
their grade level in their previous positions. S1 stated that complainant
"was a lower grade simply because he was brought on as a lateral."
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Complainant has offered no persuasive arguments on appeal regarding the
AJ's decision to issue a decision without a hearing, or regarding the
AJ's findings on the merits. Therefore, 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 order, because the Administrative
Judge's issuance of a decision without a hearing was appropriate and a
preponderance of the record evidence does not establish that unlawful
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
July 14, 2009
__________________
Date
1 The record reflects that claim 3 was later amended to the instant
complaint.
2 The Commission presumes for purposes of analysis only, and without so
finding, that complainant is an individual with a disability.
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0120092279
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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