Reginald Jones, Complainant,v.Paul Prouty, Acting Administrator, General Services Administration, Agency.

Equal Employment Opportunity CommissionMay 5, 2009
0120082750 (E.E.O.C. May. 5, 2009)

0120082750

05-05-2009

Reginald Jones, Complainant, v. Paul Prouty, Acting Administrator, General Services Administration, Agency.


Reginald Jones,

Complainant,

v.

Paul Prouty,

Acting Administrator,

General Services Administration,

Agency.

Appeal No. 0120082750

Agency No. GSA-06R2PBSRJ16

Hearing No. 520-2007-00077X

DECISION

On May 31, 2008, complainant filed an appeal from the agency's May 2,

2008 final order concerning his equal employment opportunity (EEO)

complaint claiming unlawful employment discrimination 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. The appeal is deemed timely and is

accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,

the Commission AFFIRMS the agency's final order.

BACKGROUND

During the period at issue, complainant held a wage-grade position, as

a Mechanical Work Inspector, with the agency's Public Buildings Service

(PBS), in the Northeast and Caribbean Region (Region 2). On February

28, 2003, complainant learned that wage-grade positions, including

his position, were to be abolished. Believing that the separation was

discriminatory, complainant contacted an agency EEO office. Informal

efforts to resolve complainant's concerns were unsuccessful. On June 10,

2003, complainant filed a formal complaint based on race and age.1

Weeks later, another wage-grade employee, Vincent Guerriero, filed

a formal complaint on the same matter. This employee, a Region 2

custodian/gardener with PBS, claimed discrimination on the bases of

age and disability.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing and the matter was assigned to an AJ. In March 2007,

the agency requested the consolidation of complainant's complaint with

Vincent Guerriero's complaint.

On April 11, 2007, before ruling on the consolidation request, the AJ

issued a decision regarding complainant's claim of racial discrimination.

The AJ determined that summary judgment was appropriate, with respect to

the race portion of the formal complaint, because there were no genuine

issues of material fact. According to the AJ, complainant was unable

to establish a prima facie case of racial discrimination. Eight of the

eighteen people in the first group subjected to the conversion, of which

complainant was a member, were outside of complainant's protected class

(i.e. Caucasian and Hispanic). The AJ found that complainant failed to

show that he was treated differently due to his race.

Thereafter, on May 10, 2007, the AJ consolidated complainant's remaining

basis (age) Vincent Guerriero's case2 "solely for the purposes of

remaining discovery and trial." The agency's motion for a decision

without a hearing was denied, and hearing was held on January 24, 2008

and February 8, 2008. In her decision, issued on April 24, 2008, the

AJ found no discrimination.3

As an initial matter, the AJ determined that complainant presented a

prima facie case of age discrimination. All the positions selected to be

abolished and performed by private contractors were held by individuals

over the age of forty.

The AJ also found that the agency proffered legitimate, non-discriminatory

reasons for its actions. Agency management witnesses testified that

OMB, in response to the President's Management Agenda (PMA) requiring

agencies to reduce their full-time work force by 5% in 2002 and 15% in

2003, decided to focus on positions that "are not strictly governmental"

to convert to private sector. An agency official, with the assistance

of hired consultants, determined that the trade and craft positions were

best suited for such conversions. They reasoned that these positions

had already been subject to reductions via attrition, and were "highly

commercial" in nature and therefore more easily transferred to private

contractors. Additionally, the agency relied upon cost data which

indicated that the conversion of those functions would result in savings.

The AJ observed that later studies revealed that it was not always

a cost savings to send the functions to contractors. However, the

studies themselves were costly, so the agency was permitted to directly

convert the first group of positions without such studies. Complainant

was in this first conversion. Thereafter, however, OMB issued revised

instructions which prohibited direct conversions. The agency was required

to first conduct a study before selecting positions for abolishment, to

ensure that they were more expensive than when performed by the private

sector. Such studies were conducted for the second and third group of

positions, which prevented those individuals from losing their jobs.

In an attempt to establish pretext, the complainant argued that the

fact that the second and third groups did not lose their positions

was indicative of age discrimination. The AJ disagreed, noting that

individuals in those later groups were not, as a whole, younger than

complainant's (first) group.

After finding no case of disparate treatment due to complainant's

age, the AJ conducted an analysis of the record for disparate impact.

Complainant established that all of the forty-four positions selected

for conversion, over three years, were held by individuals over the age

of forty. However, the AJ determined that "technically" complainant

failed to provide sufficient statistical data to support a prima facie

case of disparate impact. The AJ found that complainant did not

submit statistical evidence to show, for comparative purposes, that

others outside the protected category (i.e. employees under the age of

forty) could have been affected by the agency's neutral action. Moreover,

even assuming that complainant had established a prima facie case, the

AJ concluded that the agency presented reasonable factors other than age

for its action. As noted above, these positions were selected due to the

ease of simply accelerating the attrition process that was already being

utilized, the decision fit with the agency's business strategy, and cost

data at the time indicated a savings if such functions were outsourced.

Finally, the AJ addressed complainant's assertions that the depositions

of two witnesses were taken in bad faith and therefore the agency should

bear the cost. According to the AJ, there was no evidence of bad faith

and denied the complainant's request.

On May 2, 2008, the agency subsequently issued a final order adopting

the AJ's finding that complainant failed to prove that he was subjected

to discrimination as alleged. Complainant filed the instant appeal.

CONTENTIONS ON APPEAL

On appeal, complainant challenges the AJ's conclusion that a legitimate,

non-discriminatory reasons were provided by the agency. Specifically,

complainant argues that his position is not "commercial" and should not

have been targeted for conversion. Instead, his function continues to be

performed by agency employees. Complainant believes that the fact that

the employees in the second and third groups were never terminated, the

remaining conversions were not completed, was evidence of discrimination.

Regarding how the individuals were selected for the first group,

complainant argues that the list used "was biased against older employees"

and "there was no rational" regarding the selection of individuals.

Complainant also asserts that a cost study should have been conducted

on his group, because the OPM revision (prohibiting direct conversions)

occurred prior to the effective date of complainant's removal. Finally,

complainant contends that "enormous pressure" was put on him to accept

the buy out, and he was never informed of his statutory protections.

In response, the agency reiterates the AJ's reasoning that legitimate,

non-discriminatory reasons were presented for complainant's separation. 4

The agency asserts that the determination to outsource the trade

and crafts positions was due OMB's implementation of the PMA and in

furtherance of a prior agency decision to reduce or eliminate those

positions. The agency asserts that it focused on positions, and not the

characteristics of the employees in those positions, in determining what

functions to outsource. The Region devised a three-year plan to achieve

the agency's goals. Those trade and craft positions that were most easily

convertible or absorbed into existing contracts were assigned to the

first group to be affected. PBS, complainant's division, simply selected

the positions that matched that criteria in grade order (from lowest

to highest) and stopped after reaching the required eighteen positions.

Complainant's position, performing the gardening function, was part of a

janitorial contract and therefore was not considered a necessary separate

agency position. According to the agency, its determination to remove the

trade and crafts positions was a lawful business decision. The agency

requests that the Commission affirm its finding of no discrimination,

arguing that complainant has not established that the AJ's decision is

unsupported by substantial evidence.

ANALYSIS AND FINDINGS

Race

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.

As an initial matter, the Commission finds that the AJ properly issued

a decision without a hearing with respect to complainant's claim of

racial discrimination. There is no genuine issue of material fact. 5

In the absence of direct evidence, a claim of discrimination is examined

under the three-part analysis originally enunciated in McDonnell

Douglas Corporation v. Green. 411 U.S. 792 (1973). For complainant to

prevail, she must first establish a prima facie case of discrimination

by presenting facts that, if unexplained, reasonably give rise to an

inference of discrimination, i.e., that a prohibited consideration was a

factor in the adverse employment action. Id. at 802; Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the

agency to articulate a legitimate, nondiscriminatory reason for its

action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981). Once the agency has met its burden, complainant bears the

ultimate responsibility to persuade the fact finder by a preponderance

of the evidence that the agency acted on the basis of a prohibited

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

The Commission agrees that complainant has failed to establish a prima

facie case of racial discrimination. The record reveals that many of

the individuals also affected by the agency's action were outside of

complainant's protected class. In addition to African-American employees,

Caucasians and Hispanic employees were in the group selected for buy-out.

The circumstances surrounding the conversion of complainant's position

do not give rise to an inference of discrimination based on race.

Moreover, even assuming arguendo that a prima facie case was established,

the agency has presented a non-discriminatory reason for its actions.

As noted above, the agency states that its decision to outsource

complainant's position was taken as part of the PMA requirement that

the workforce be reduced. Further, because complainant's position was

one that had been subject to attrition and was not considered strictly

governmental, it was one of the first selected for abolishment.

Age

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or

on the tone of voice of a witness will be accepted unless documents or

other objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

Disparate Treatment Claim

Under the ADEA, it is "unlawful for an employer . . . to fail or refuse

to hire or to discharge any individual or otherwise discriminate against

any individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual's age." 29

U.S.C. � 623(a)(1). When a complainant alleges that he or she has been

disparately treated by the employing agency as a result of unlawful

age discrimination, "liability depends on whether the protected trait

(under the ADEA, age) actually motivated the employer's decision."

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)

(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,

[complainant's] age must have actually played a role in the employer's

decision making process and had a determinative influence on the

outcome." Id.

While complainant alleges that the agency's action in abolishing

his position was motivated by his age, the agency contends that

it was required to reduce its full-time positions and outsource

non-governmental functions as part of OPM's implementation of the PSA.

In an attempt to establish pretext, complainant argues that the basis

of age is simply equal to wage-grade employees, and that by focusing on

wage-grade positions, the agency committed age discrimination. Moreover,

complainant challenges the agency's decision, asserting that other options

were available (i.e. spread the conversion of forty-four positions over

the entire agency). Complainant also argues that the cost data relied

upon by the agency was later was shown to be flawed.

The Commission, however, is not persuaded that the AJ's determination of

no discrimination was not supported by substantial evidence of record.

On appeal, complainant has not established that record fails to support

the AJ's conclusion that complainant did not prove, by a preponderance of

the evidence, that the agency's actions were motivated by discriminatory

animus based on complainant's age.

Disparate Impact Claim

As noted above, the AJ also evaluated complainant's claim of

discrimination under the theory of disparate impact. The Commission

has held that a claim of disparate impact discrimination may apply

under the ADEA against federal government agency employers. Witkowsky

v. Department of the Interior, EEOC Petition No. 03970122 (January

30, 1998). In general, to establish a prima facie case of disparate

impact, a complainant must show that an agency practice or policy,

while neutral on its face, disproportionately impacted members of the

protected class through a presentation of statistical evidence that

demonstrates a statistical disparity that is linked to the challenged

practice or policy. Watson v. Fort Worth Bank and Trust, 487 U.S. 977,

994 (1988) (a complainant must present statistical evidence of a kind and

degree sufficient to show that the practice in question has caused the

exclusion). Specifically, a complainant must: (1) identify the specific

policy or practice challenged;. (2) show statistical disparities; and

(3) show that the disparity is linked to the challenged practice or

policy. Id. The burden is on a complainant to show that the facially

neutral standard in question affects those individuals within the

protected group in a significantly discriminatory pattern. Dothard

v. Rawlinson, 433 U.S. 321, 329 (1977); see also Kimble v. Department

of Commerce, EEOC Request No. 05950838 (June 20, 1997). If complainant

successfully establishes a prima facie case, the burden is then on the

agency to show the adverse impact was attributable to a "reasonable"

factor other than age. Smith v. City of Jackson, Miss., 544 U.S. 228,

239, 243 (2005) (the reasonableness inquiry does not ask "whether there

are other ways for the employer to achieve its goals that do not result

in a disparate impact on a protected class").

The Commission agrees with the AJ's finding that complainant failed to

establish a prima facie case of disparate impact. We find complainant

did not establish statistical disparities, in that there was no evidence

that employees under the age of forty could have been affected by the

neutral action. Moreover, even assuming that a prima facie case was

presented, we find that the agency has presented several "reasonable"

factors other than age for its action.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, the Commission AFFIRMS

the agency's decision.

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

May 5, 2009

__________________

Date

1 Before filing an individual EEO complaint, complainant was the

class agent for a proposed class complaint. In July 2004, an AJ denied

certification of the class. Thereafter, complainant filed an appeal from

the agency's final order implementing the AJ's decision. The Commission

affirmed the rejection of the class. However, the Commission reversed

the agency's rejection of complainant's individual complaint. The

individual complaint was remanded to the agency for further processing.

Jones v. General Services Administration, EEOC Appeal No. 01A50310

(June 1, 2006).

2 As with the instant case, the AJ issued a decision dispensing with

Vincent Guerriero's claim of discrimination on the basis of disability,

without a hearing. Consequently, when the cases of complainant and Vincent

Guerriero were consolidated only the common basis of age remained.

3 While the instant case was consolidated with the Guerriero case at

hearing and the AJ issued one decision, separate appeals were filed

by the complainants. The Guerriero case has been assigned Appeal

No. 0120082738.

4 The agency submitted one response to both complainant's appeal as well

as Vincent Guerriero's appeal.

5 We note that the decision was inaccurately titled "Partial Dismissal".

The AJ did not procedurally dismiss the claim, but rather addressed the

merits and found no discrimination.

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0120082750

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120082750