01991919
08-22-2001
Ruby Kindle v. Department of Defense
01991919
August 22, 2001
.
Ruby Kindle,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01991919
Agency No. DE-FY95-05
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged
that she was discriminated against on the bases of her race (Black) and
age (53 at the time of the complaint) when her position series was changed
from GS-201, which has promotion potential, to GS-203 which does not.
The record reveals that on December 11, 1994, complainant transferred from
the Department of Treasury, where she served as a Supervisory Records
Management Assistant, to the Department of Defense Education Activity,
Employment Services Section, as a Personnel Management Specialist.
This classification was apparently an error, as the job description
complainant was selected under reflected that the position was that of
Personnel Assistant. The person who selected complainant (SO) stated
that she changed the series and title on the appropriate documents after
she selected complainant. The SO says she did this without approval.
No explanation as to her motivation for taking this action is included
in the record.
Complaints from other Personnel Assistants (CW1 and CW2) triggered
management to look into complainant's classification. CW1, CW2,
and management all expressed concern about the fact that complainant
was placed into a competitive position without competing for it.
Complainant was then reclassified as a Personnel Assistant by the
Chief of Classification (RMO). The RMO maintains that he did not know
complainant's race or age at the time he made the changes to correct
the unauthorized personnel action of the SO.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on April 4, 1995.
On September 13, 1995, the agency and complainant entered into a
settlement agreement (SA). By letter dated July 7, 1997, complainant
alleged noncompliance by the agency with the SA, and requested her
complaint be reinstated for investigation. At the conclusion of the
investigation, complainant was informed of her right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a final
decision by the agency. When complainant failed to respond within the
time period specified in 29 C.F.R. � 1614.108(f), the agency issued a
final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination on either bases because she
neither demonstrated that similarly situated individuals were treated
differently nor did she prove that the agency's actions were motivated
by discriminatory animus. The agency further states that complainant
cannot make out a prima facie case of discrimination because no adverse
employment action was taken as the reclassification did not affect
her salary. Complainant makes no contentions on appeal. The agency
requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue), the Commission finds that even assuming that complainant
established a prima facie case of age and race discrimination, complainant
failed to present evidence that more likely than not, the agency's
articulated reasons for its actions were a pretext for discrimination.
In reaching this conclusion, we note that the agency stated that the
change was made because allowing complainant to stay in the position and
then be promoted would violate merit principles, as she did not compete
for the position and it was reclassified without approval.
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 (M0701)
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 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 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 (S0900)
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
August 22, 2001
__________________
Date