01977089
02-18-2000
Ronnie D. Wilson, Complainant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.
Ronnie D. Wilson v. Environmental Protection Agency
01977089
February 18, 2000
.
Ronnie D. Wilson,
Complainant,
v.
Carol M. Browner,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01977089
Agency No. 960032R4
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of sex (male) and reprisal (prior EEO
activity), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> Complainant claims that he was
discriminated against when his, temporary (2 year) promotion to a GS-14
Programmatic Lead Region Coordinator position (Position) was canceled
in October 1995. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was
employed as a GS-13 Program Management Analyst in the agency's Waste
Management Division (WMD), Atlanta, Georgia. Complainant claims that his
promotion to the Position was approved by his supervisor, but that it
was canceled by a personnel specialist (PS) and two management officials
in the Personnel Office in retaliation for the successful settlement of
a 1990 EEO complaint wherein he alleged sex discrimination.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint.<2> At the
conclusion of the investigation, complainant requested that the agency
issue a FAD.
The FAD concluded that complainant failed to establish a prima facie
case of sex discrimination primarily because he presented no evidence
that similarly situated individuals not in his protected classes were
treated differently under similar circumstances. The FAD also concluded
complainant failed to establish a prima facie case of reprisal because
he presented no evidence of a causal connection between the settlement
of his prior EEO complainant in 1990 and the cancellation of the instant
temporary promotion many years later.
On appeal, complainant contends that the agency failed to consider a
number of his arguments, and challenges the credibility of the testimony
presented by the Chief (C) of the personnel office, a Deputy Assistant
(DA), and PS. Complainant also contends that the investigator was inept
and the investigation inadequate.<3> The agency requests that we affirm
its FAD.
Based on the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission agrees with the agency that complainant failed to establish
a prima facie case of sex discrimination or reprisal. In reaching this
conclusion, we note that the record is well documented that all the
approved promotion requests from the WMD, along with complainant's, were
cancelled at the same time pursuant to an agency-wide directive freezing
non-ladder<4> promotions to GS-13, GS-14, and GS-15 positions pending
a major reorganization. In fact, it appears that the WMD had violated
the directive to freeze promotions by submitting these requests at all,
which resulted in the large number of cancellations. Although complainant
argues that a female (F) in another division received a similar promotion
a year before, we note that this was prior to the agency's "freeze" and as
such is not evidence of disparate treatment in the instant situation.<5>
Moreover, although complainant offers much speculation as to how and
why his promotion was singled out from the others and cancelled due to
sex discrimination and reprisal, he presents no evidence to substantiate
his theories.<6> Furthermore, although he claims to have been subjected
to on-going acts of reprisal from the time his prior EEO complaint was
settled, up to and including the cancellation of the instant promotion,
he provides no evidence to demonstrate that any of the agency's actions
identified in this context were motivated by reprisal or impermissible
animus of any sort. Furthermore, we have carefully reviewed the affidavits
of C, DA, and PS, and find that they presented testimony which is
factually consistent with the record of evidence before us and otherwise
appears to be straight-forward and credible. Therefore, we find that
the evidence overwhelming shows that complainant's temporary promotion
was canceled because of the agency-wide freeze on this type of promotion,
and complainant has failed to present any evidence from which we can infer
either a discriminatory or retaliatory motive on the part of the agency.
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 FAD.
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 18, 2000
__________________
Date
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
______________________________
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.
2In its August 20, 1996, FAD the agency accepted the instant claim for
processing, but rejected five other claims in the complaint. On appeal,
we affirmed the agency's FAD regarding the dismissal of four of these
claims, but vacated the dismissal of the claim regarding the cancellation
of a room reservation made by complainant to hold an American Indian
Heritage Month activity, and remanded it to the agency for further
processing. Wilson v. Environmental Protection Agency, EEOC Appeal
No. 01966778 (July 25, 1997). Both complainant and the agency initiated
requests for reconsideration, which we denied. Wilson v. Environmental
Protection Agency, EEOC Request No. 05970989 (November 13, 1997). We
note that the record does not reveal the ultimate disposition of the
remanded claim, and it has not been appealed to this Commission.
3We have carefully reviewed the record and find that it contains
sufficient evidence to support this determination. Moreover, we find no
evidence that the investigator was "inept" as claimed by complainant.
4Complainant's promotion was based on an accretion of duties, and was
not a "ladder" promotion to a GS-14.
5Complainant also argues that the agency is obligated to promote him
to the GS-14 Position because he was performing the same work as (F),
but being paid less, in violation of the Equal Pay Act (EPA). The EPA
was enacted to remedy the problem of sex-based wage discrimination. It
stands for the straightforward proposition that "employees doing
equal work should be paid equal wages, regardless of sex." Goodrich
v. International Brotherhood, of Electrical Workers, 815 F.2d 1519, 1523
(D.C. Cir. 1987). The EPA mandates that an employer not discriminate
"within any establishment in which such employees are employed,
between employees on the basis of sex by paying wages to employees
in such establishment at a rate less than the rate at which he pays
wages to employees of the opposite sex in such establishment for equal
work on jobs the performance of which requires equal skill, effort,
and responsibility, and which are performed under similar working
conditions 29 U.S.C. 206(d)(1). Based on these tenets, we find that
complainant has not set forth a cognizable claim under the EPA because
the record shows that he is not performing "equal work" as compared to
(F), who has distinctly different duties as compared to complainant.
6One of these theories is based on a "mixed motive" argument. The
Commission notes that a "mixed motive" case is one in which the agency
bases its decision upon permissible and impermissible factors. Under a
mixed motive theory, where there is direct evidence of an impermissible
factor, the agency must prove, by a preponderance of the evidence, that
it would have made the same decision absent a discriminating factor
(reprisal). However, we do not find that this is a "mixed motive"
case. Instead, we find that the record fully supports the agency's
contention that the agency-wide promotion freeze was the only reason that
complainant's promotion was cancelled, and there is no direct evidence
that an "impermissible factor" was involved in this action. See Kretschmar
v. Department of the Navy, EEOC Appeal No. 01961851 (April 5, 1999);
Caronia v. Department of Justice, EEOC Petition No. 03980100 (April 2,
1999).