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.