01990736
03-06-2000
Robert Boyd, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Robert Boyd v. Department of Agriculture
01990736
March 6, 2000
Robert Boyd, )
Complainant, ) Appeal No. 01990736
)
v. ) Agency No. 970108
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
_______________________________)
DECISION
Robert Boyd (complainant) filed an appeal with this Commission from
a final decision of the Department of Agriculture (agency) concerning
his complaint of unlawful employment discrimination, in violation of
the Age Discrimination in Employment Act (ADEA) of 1967, as amended,
29 U.S.C. � 621 et seq.<1> Complainant's claim of discrimination
is based upon his age (65)<2> when: (1) in approximately, May, 1996,
his position as Officer in Charge (OIC) in Baton Rouge, Louisiana, was
abolished; (2) on June 23, 1996, he was reassigned to the position of
State Operations Support Officer (SOSO), in Baton Rouge, Louisiana; (3)
effective January 5, 1997, he was relocated to New Orleans, Louisiana;
(4) he was not selected for the position of First Line Supervisor (FLS)
in Baton Rouge, Louisiana; and (5) his payment of relocation costs was
delayed by the agency.<3>
On October 1, 1996, complainant sought EEO counseling and on January 5,
1997, he filed a formal complaint claiming discrimination as referenced
above. The complaint was accepted for processing. Following an
investigation, complainant requested a final agency decision. The agency
issued a final decision finding no discrimination on August 14, 1998. It
is this agency decision which the complainant now appeals.
The record reflects the following: At the time of the alleged
discrimination, complainant was employed by the agency as a Supervisory
Plant Protection Quarantine Officer, Officer in Charge (OIC), GS-0436-12,
in Baton Rouge, Louisiana. At that time, complainant had been employed
by the agency 41 years. Complainant supervised 8 employees.
Pursuant to a reorganization plan in accordance with both the National
Performance Review and an executive order requiring a reduction in the
number of supervisors, the agency abolished the title of OIC and replaced
it with FLS. In June, 1996, pursuant to the agency reorganization,
the complainant's position was abolished. The complainant was the only
employee in Louisiana to have his position abolished, but employees
in other states were similarly affected. The complainant was then
assigned to a newly created position of SOSO, GS-0436-12, in Baton Rouge,
Louisiana. In the SOSO position, the complainant had no supervisory
responsibilities. However, complainant retained his pay and grade.
Following his reassignment, complainant was informed that his new position
would be relocated to New Orleans. The complainant requested relocation
costs in late August, 1996 and early October, 1996. The agency informed
complainant that the relocation could not take place until after October,
1996 because the agency had no funds in the fiscal year 1996 budget to
fund his moving expenses. Complainant was advised that his relocation
costs would come from the fiscal year 1997 budget and that his relocation
would be effective on January 5, 1997.
On September 3, 1996, the agency advertised a newly created position
for a Supervisory Plan Protection Quarantine Officer, GS-0436-12, in the
Baton Rouge, Louisiana office, commonly referred to as the FLS position.
Complainant's first-line supervisor (S1) sent complainant a copy of the
vacancy announcement, in the Netherlands,<4> when it first came out.
On November 7, 1996, S1 received a copy of the best qualified list (BQL).
However, complainant's name was not listed. Since S1 found it unusual
that complainant's name was not on the BQL, he called complainant in
the Netherlands to see if he had applied for the position. Complainant
advised S1 that he had applied. It was discovered that the personnel
office misfiled complainant's application. Accordingly, a new BQL was
issued which included complainant's name.
Settlement negotiations led S1 to believe that complainant was no
longer interested in remaining in Baton Rouge, Louisiana. S1 asked
complainant if he was still interested in the FLS position. According to
S1, complainant stated that he was no longer interested. Accordingly,
the record shows that S1 sent complainant a letter confirming this
conversation. S1 stated that it was his understanding that complainant
no longer wished to be considered for the GS-12 FLS position, in Baton
Rouge, Louisiana. Accordingly, S1 explained that complainant would not
be interviewed for the position or receive any further consideration.
The letter also requested complainant's signature as confirmation that
he received the letter. While complainant never signed the letter, there
is no indication that complainant corrected any alleged misunderstanding
that S1 may have had. While the complainant denies that he informed
S1 that he no longer wanted to be considered for the FLS position, he
states that he told S1 that if the agency treated him right (offered him
a settlement for his EEO complaint), that he did not care if he got the
(FLS) job or not. Complainant further stated that S1 misinterpreted<5>
complainant's statements. Accordingly, complainant was not considered
for the position and CW1 (age 63) was selected.
FINAL AGENCY DECISION
Claims 1, 2, 3, and 5 (Abolishment of Position, Reassignment, Relocation
and Relocation Costs
The agency determined that complainant established a prima facie case of
age discrimination, since he was over 40 and he was the only employee
in the agency's Louisiana facilities to be affected in this manner.
The agency also found that it articulated legitimate, non-discriminatory
reasons for its employment actions and that complainant did not present
sufficient evidence of pretext or discriminatory animus. Specifically,
the agency noted, inter alia, the following: The record shows that
the reorganization plan was followed by the agency with respect to
the abolishment and reassignment of complainant's position. The plan
provided that GS-12 OIC employees would be non-competitively reassigned
to the new GS-12 FLS positions only in situations where there was no
incumbent subordinate supervisor. Since complainant had an assistant, a
GS-11 OIC, who reported to him, he was not qualified for non-competitive
reassignment and was subject to the merit promotion procedures.<6> The
record also shows that S1 moved from the New Orleans office to the Baton
Rouge office in 1996 which resulted in three supervisors working in Baton
Rouge for seven employees. Despite S1's attempt to keep complainant in
his original position and in Baton Rouge, the Regional Director (S2),
who was located in Brownsville, Texas, declined S1's request and required
him to reassign complainant. Thereafter, S2 instructed that complainant
be moved to New Orleans, since S1's move to Baton Rouge would negate the
need for an OIC in that location.<7> In response to S2's directive,
S1 abolished complainant's position and created the SOSO position in
New Orleans.
With respect to the relocation and relocation costs, the agency noted
that complainant was informed, in June, 1996, that due to budget problems,
his move could not be authorized until fiscal year 1997, and accordingly,
his transfer to New Orleans would not be effective until January 5, 1997.
The record shows that complainant requested moving authorization in August
and October, 1996, which was issued on November 7, 1996. In August, 1996,
S1 contacted complainant in the Netherlands,<8> informed him that funds
had been identified to effect his move, and asked him if he wanted travel
orders issued. Complainant responded that he did not want to think about
moving until he returned to the United States. The agency found that
while complainant alleged that S2 improperly placed his authorization
on hold, there is no evidence in the record to support this assertion.
The agency found that the record, as a whole, is insufficient to prove
discrimination based upon age.
Allegation 4 (Non-Selection)
With respect to complainant's non-selection allegation, the agency
found that a prima facie case was not established. Specifically, the
agency noted that at the time of the non-selection, complainant was 65
years old and the selectee was 63 years old. Accordingly, the agency
determined that the difference in their ages was not significant enough
to establish an inference of age discrimination.
In addition, assuming that a prima facie case was established, the agency
did not find sufficient evidence of pretext or discriminatory animus.
Specifically, the agency noted that the record shows that S1 went out of
his way to ensure that: (1) the complainant got a copy of the vacancy
announcement; (2) the complainant was notified that his name was
not on the original BQL; and (3) personnel was contacted to find the
complainant's application so that he was included on an amended BQL,
but that complainant was eliminated from further consideration since
S1 believed that complainant no longer wished to be considered for
the position. While complainant argues that he never told S1 that he no
longer wanted to be considered for the position, he states that S1
"mis-interpreted" his statement. There is no evidence in the record which
suggests that S1 believed that complainant wanted to be considered for the
position, but, nevertheless, eliminated complainant from consideration.
Accordingly, the agency found insufficient evidence of discrimination.
ANALYSIS AND FINDINGS
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that, in all material respects, the agency accurately set forth
the relevant facts and properly analyzed the case using the appropriate
regulations, policies, and laws. We find complainant's contentions,
on appeal, unpersuasive. For example, complainant argues that the SOSO
position is designed to directly support the State Plant Health Director
(SPHD) (S1). Complainant asserts that "to his knowledge" throughout the
United States, all SOSOs are co-located with their SPHDs. In addition to
first raising this argument on appeal, complainant provides no evidence
to support his assumption that all SOSOs are co-located with their SPHDs.
Even if it was shown that a substantial number of offices throughout the
United States follow this policy, there is no evidence which supports a
finding of discriminatory intent behind S2's decision to keep the SOSO
separate from the SPHD in Louisiana. Accordingly, it is the decision of
the Equal Employment Opportunity Commission to AFFIRM the final agency
decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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 (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
3/6/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
1 On 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.
2 All ages pertain to the time of the alleged discrimination.
3 Complainant's formal complaint alleged discrimination based on age and
reprisal. However, complainant later withdrew his reprisal allegation.
4 Shortly before the vacancy announcement came out, complainant was
detailed in the Netherlands.
5 It should be noted that complainant did not allege that S1 believed
that he was still interested in the position.
6 It should be noted that complainant does not contend that the
reorganization plan was created with the purpose or effect of
discriminating against complainant.
7 According to S1, S2 also noted that Louisiana needed more SOSOs than
supervisors.
8 Complainant was serving a detail in the Netherlands from August,
1996 through October, 1996.