0120070922_revised
01-14-2009
Rollie J. Webb, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Rollie J. Webb,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120070922
Agency No. ARPICAT05NOV12299
DECISION
On December 2, 2006, complainant filed an appeal from the agency's
November 6, 2006 final decision concerning his equal employment
opportunity (EEO) complaint alleging 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. 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 decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a GS-1670-12 equipment specialist at the agency's Development and
Engineering Center in Indian Head, Maryland.
The record reveals that on October 3, 2005, the agency announced a vacancy
for the position of lead equipment specialist, GS-1670-13, at Picatinny
Arsenal, New Jersey. Complainant did not apply for the position, and a
white applicant was selected for the position effective December 2005.
On October 24, 2005, complainant requested that his second-line supervisor
review a proposed position description and sign a statement recommending
that complainant be promoted to the GS-13 level because of accretion
of duties. On November 9, 2005, the second-line supervisor informed
complainant that although he thought that complainant's position
description needed to be revised, he would not endorse complainant's
request to have his position upgraded to the GS-13 level.
On December 28, 2005, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of race (African-American)
when management promoted an equipment specialist to a GS-1670-13 position
at Picatinny Arsenal but did not provide him with an opportunity to be
promoted to the GS-1670-13 level in his current location in Indian Head,
Maryland.
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 final agency decision or a hearing before an EEOC Administrative Judge
(AJ). Complainant either requested a final decision or did not respond
to the agency's notice, and the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b). In its final decision, the agency concluded
that complainant failed to prove that he was subjected to discrimination
as alleged. Specifically, the agency found that complainant failed to
establish a prima facie case of race discrimination or prove that the
agency's legitimate, non-discriminatory reasons for its actions were
pretext for race discrimination.
On appeal, complainant contends that the agency improperly found
no discrimination. Complainant argues that he established a prima
facie case of race discrimination because a white GS-1670-12 equipment
specialist was promoted to a GS-1670-13 equipment specialist position
at Picatinny Arsenal. Complainant further contends that his position
should be upgraded to the GS-13 level, but management refused to
sign an Accretion of Duties Promotion Certification (ADPC) for him.
Complainant states that he did not apply for the GS-13 position advertised
at Picatinny Arsenal, and notes that there have been no competitive or
non-competitive promotions at Indian Head.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
In a claim such as the instant one which alleges disparate treatment
based upon race, and where there is an absence of direct evidence of such
discrimination, the allocation of burdens and order of presentation of
proof is a three-step process. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 142 (2000) (applying the analytical framework described in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA
disparate treatment claim). First, complainant must 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. Kimble v. Department of the Navy, EEOC Appeal No. 01983020
(Aug. 22, 2001).
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has
articulated such a reason, the question becomes whether the proffered
explanation was the true reason for the agency's action, or merely
a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509
U.S. 502, 511 (1993). Although the burden of production, in other words,
"going forward," may shift, the burden of persuasion, by a preponderance
of the evidence, remains at all times on complainant. Burdine, 450
U.S. at 256.
Assuming arguendo that complainant established a prima facie case of race
discrimination, we nonetheless find that the agency offered legitimate,
non-discriminatory reasons for its actions. Specifically, agency
management stated that complainant was not selected for the Picatinny
Arsenal promotion because he did not apply for that competitive promotion
and his work duties did not warrant a non-competitive promotion. Agency
management further stated that complainant could not be promoted based
upon an accretion of duties because there was another GS-12 equipment
specialist at Indian Head who performed or could have performed duties
substantially the same as the duties complainant performed. A copy of
pertinent agency regulations state that promotions can occur because
of accretion of duties only when "there are no other employees at
the same grade in the unit supervised by the selecting official who
are performing duties substantially the same as those performed by the
employee . . . ." Armament Research, Development, and Engineering Center
Regulation 690-35.
Complainant contends that the agency could have promoted him
non-competitively because the other GS-12 equipment specialist is 73-years
old and apparently will soon retire. However, the co-worker's age is
irrelevant to promotion regulations or any personnel action; in fact,
EEO regulations preclude the agency from considering an employee's
age when undertaking personnel actions. Complainant further contends
that he should have been non-competitively promoted because he is in the
Acquisition Work Force and has Level III certification, whereas the other
GS-12 equipment specialist does not have these attributes. However, we
determine that complainant has not proven that he and his co-worker did
not perform substantially the same duties as GS-12 equipment specialists.
We conclude that complainant failed to provide any persuasive evidence
that the agency's articulated reasons for its actions were pretext for
unlawful discrimination. Thus, we find that the agency properly found
no discrimination.
CONCLUSION
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 decision
because the preponderance of the evidence of record does not establish
that 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
_January 14, 2009_________________
Date
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0120070922
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120070922
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