Phyllis A. Smith, Complainant, Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionApr 19, 2000
01990231 (E.E.O.C. Apr. 19, 2000)

01990231

04-19-2000

Phyllis A. Smith, Complainant, Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Phyllis A. Smith v. Department of Agriculture

01990231

April 19, 2000

Phyllis A. Smith, )

Complainant, )

) Appeal No. 01990231

) Agency No. 96-0605

)

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal of a final agency decision concerning

her complaint of unlawful employment discrimination. She claimed

discrimination on the bases of race (African American), color (Black),

age (DOB 5/13/53) in violation of Title VII of the Civil Rights Act of

1964, 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.<1>

Complainant alleges she was discriminated against when: (1) she was

not promoted to a GS-12 after a desk audit; and (2) she was not given

career enhancing duties prior to the desk audit. The appeal is accepted

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. � 1614.405). For the following reasons, the Commission AFFIRMS

the final agency decision.

Background

The record reveals that during the relevant time, complainant was

employed as a Program Specialist GS 301-11 at the agency's Foreign

Agricultural Service, Commodity and Marketing Operations, Marketing

Operations Staff. Complainant claimed that she requested a desk audit

of her position because she had been performing duties at a higher level

than her position classification. She further claimed that the desk

audit results finding that her position should remain a GS-11 was in

error and was due to race and age discrimination. She contended her

supervisors S1 (White, DOB 3/30/54) and S2 (White, DOB 12/6/49) knew

that she wanted to be promoted for the last five years. In response to

the loss of professional personnel in the office, complainant claimed

she had suggested they create upward mobility positions which could be

filled by program specialists who were already familiar with the work

assignments. She alleged that management stated it was not interested,

but later established two upward mobility positions. One was filled by a

white applicant and the other was filled by an employee 20 years younger

than complainant. She also alleged the younger employee received the

assignments that complainant had requested to help her to advance.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint dated June 5, 1996.<2>

At the conclusion of the investigation, complainant requested that the

agency issue a final agency decision.

The agency concluded that complainant did not establish a prima facie

case of race discrimination because she failed to demonstrated that

similarly situated employees not in her protected class were treated

differently than her under similar circumstances. In support of this,

the agency pointed to an African American employee (African American,

DOB 2/5/68) (E1) who was upgraded during the series of desk audits

which dispelled the inference that discrimination occurred. At the

same time, a Caucasian employee working as a Program Specialist in the

same office whose job was audited was not upgraded. Thus, the agency

concluded that the complainant failed to establish even an inference of

race discrimination. The agency treated race and color discrimination as

synonymous because it claimed the complainant did not make a distinction.

The agency found that complainant established a prima facie case

of age discrimination because E1 was also much younger than the

complainant. The other three Program Specialists who were denied upgraded

classifications were all over the age of 40. The agency concluded that

it did not discriminate on the basis of age because it was shown that

the classifier was not aware of the ages of the complainant and the

other employees who submitted to desk audits. It also concluded, that

there was no age discrimination in the distribution of career enhancing

assignments because the evidence showed the complainant did not take

the initiative in assuming more complex work.

On appeal, the complainant contends that the agency failed to consider

her statements in rebuttal to the statements of management in reaching

its final decision. She claimed in her rebuttal, that had management

redistributed the assignments more evenly among the Program Specialists

she would have received an upgrade. Management's decision not to assign

the younger employee more of the complainant's financial responsibilities,

resulted in the younger employee having more time to work on the more

attractive assignments. This in turn enhanced the younger employee's

ability to be upgraded. The complainant contested management's statements

that they had attempted to cross-train the Program Specialists in an

effort to balance the more rote responsibilities among them. In her view,

little effort was put towards balancing responsibilities among the Program

Specialists. The agency submitted no additional comments on appeal.

Analysis and Findings

Our review of the agency's final decision is de novo, meaning we examine

the record without regard to the factual and legal determination of

the previous decision maker. 29 C.F.R. � 1614.405. EEOC Management

Directive 110 (MD) Chapter 9-15 (1999). After a careful review of

the record, based on the application of the principles set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron,

600 F.2d 1003 (1st Cir. 1979); Prewitt v. United States Postal Service,

662 F.2d 292 (5th Cir. 1981), the Commission agrees with the agency's

final conclusions. As a preliminary matter, we do not agree with the

agency's decision to treat race and color discrimination as "synonymous"

because they are distinctly separate protected bases under the statute

and regulations. See Hilliard v. U.S. Postal Service, EEOC No. 01842267

(1986) Nevertheless, our analysis in this case is not significantly

changed by distinguishing between the two.

We agree that the complainant failed to establish a prima facie case

of race or color discrimination because she failed to identify a

GS-11 Program Specialist outside of the complainant's protected groups,

whose position was upgraded and who received more attractive assignments.

Even assuming the complainant established a prima facie case, we conclude

the complainant failed to show by a preponderance of the evidence that

the agency's reasons for not upgrading her position or for not giving

her career enhancing assignments, were a pretext for discrimination.

We reached this conclusion based on several factors.

First, there were no other Program Specialists employed at the GS-11

level as was the complainant. Therefore, strictly speaking, she could

not be considered similarly situated to the GS-9 employee who received

the upgrade to a GS-11. Therefore, the inference of discrimination in

this case is fairly weak. Secondly, the agency contended it did not

upgrade the complainant's position because her position description

in large part, accurately set forth her duties and responsibilities.

The complainant did not contest this assessment in her testimony.

Although she asserted she had taken on additional duties in developing

computer programs and troubleshooting computer problems which should

have resulted in an upgrade to her position, she failed to show that the

agency's failure to weigh this fact more heavily was because of her race.

The agency took a similar course in declining to upgrade the position

of a Caucasian Program Specialist who also contended she had taken on

the additional duties of a retired employee.

The Personnel Management Specialist (classifier) (African American,

DOB 5/30/60) who conducted the desk audit, stated she did not compare

the complainant's position to a computer specialist or computer

analyst position because other offices were responsible for such work.

She further stated that normally during desk audits, the supervisors

produce proposed position descriptions which reflect additional higher

level responsibilities of the employee which differed from their current

position description. In this instance, the position descriptions given

to her for all of the program specialists, both African American and

Caucasian, did not reflect any changes.

Where the classifier requested supervisory input, we observed that only

with respect to the complainant, did the supervisor indicate that the

position description understated the complexity and the need for accuracy

of her work. In each of the other employee's desk audits, both African

American and Caucasian, the same supervisor either declined to comment

or indicated the position description was accurate. Consequently, the

complainant was the only one to receive comments from the supervisor

which would have positively affected her desk audit.

Finally, the classifier indicated that the difference in responsibilities

between the Program Operations Team and the Fiscal Responsibility Team

on which the complainant worked affected her decision not to upgrade

the complainant. She testified that E1 who worked on the Program

Operations Team, performed more analytical work, wrote more briefing

papers and worked more with the regulations. Her work more clearly

indicated a higher level of complexity than reflected by a GS-9 rating,

and therefore, an upgrade was appropriate. The nature of the work on

the Fiscal Responsibility Team was more routine and administrative,

in the classifier's assessment. This the complainant did not dispute

nor did she offer any evidence that such reasons were a pretext for

race discrimination.

The same analysis holds true for the complainant's contention that

she was not given assignments which would have enhanced her career

objectives. Here again, the complainant failed to show that race and

color discrimination could be inferred in the distribution of assignments

when the employee who was allegedly favored, was the same race and color

as the complainant. In addition, the fact that a Caucasian Program

Specialist also received the more routine fiscal assignments negates

the inference that race was a factor on this issue.

The complainant's claims of age discrimination fail for many of the same

reasons. The complainant must demonstrate that age was a substantial

factor in the decision at issue in the sense that "but for" her age,

her position would have been upgraded or she would have been given

more career enhancing assignments. Loeb, supra. The complainant was

classified as a GS-11 and was seeking an upgrade to a GS-12 based on an

accumulation of additional duties not stated in her position description.

Although she claims that a younger employee was upgraded because of age

discrimination, we find the younger employee was not similarly situated

because she sought to be upgraded from a GS-9 to a GS-11. In this regard,

the decision whether to upgrade the complainant cannot be compared to

the decision whether to upgrade E1.

Moreover, the agency provided legitimate non-discriminatory reasons

for its decisions and actions as noted above which the complainant

failed to show were a pretext for age discrimination. In addition,

the evidence established that the assignments were given based on the

organization of the office which separated the fiscal functions from the

marketing functions. Thus, the complainant was unable to establish that

the distribution of assignments was more likely due to her age rather

than because of the way the office was set up.

The complainant's dissatisfaction with the methods and criteria followed

by the classifier were not enough to establish that her reasons for using

them was a pretext for age discrimination. The classifier identified the

criteria she followed as those set forth in the position standards for

the Agricultural Marketing Series (1146) as well as the Administrative

and Program Series(301). The complainant argued that the classifier

relied on the 1146 Series in error but she failed to demonstrate that to

do so was discriminatory or a pretext for discrimination. The 1146 series

though not identical to the complainant's job, set forth in general terms

the criteria for classifying an employee at the GS-12 level versus the

GS-11 level. These criteria were absent from the position classification

standard for the 301 series, and were used for that reason according

to the classifier. We see no evidence that her decision was tainted

by a discriminatory animus or resulted in preference being given to the

younger employee.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we 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:

4/19/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.

2Complainant filed a joint complaint with another employee also working

as a Program Specialist, GS-301-9, in the same office. That employee

did not file an appeal from the final agency decision.