01970179
10-15-1999
Steven L. Mosby, Appellant, v. David J. Barram, Administrator, General Services Administration, Agency.
Steven L. Mosby v. General Services Administration
01970179
October 15, 1999
Steven L. Mosby, )
Appellant, )
)
v. ) Appeal No. 01970179
) Agency No. 95-R6-FSS-SLM-20
David J. Barram, )
Administrator, )
General Services Administration, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged 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
accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether appellant has established by a
preponderance of the evidence that the agency discriminated against him
on the bases of sex (male) and age (47) when he was reassigned from his
position as a Computer Specialist, GS-0334-11, to a Contract Specialist,
GS-1102-11, position effective April 17, 1995, and he was not assigned
to interface with contractor personnel.
BACKGROUND
In a complaint dated September 29, 1995, appellant, then a Contract
Specialist, GS-1102-11, alleged that the agency discriminated against
him as delineated in the above-entitled statement "Issue Presented."
The agency conducted an investigation, provided appellant with a copy of
the investigative report, and advised appellant of his right to request
either a hearing before an EEOC administrative judge (AJ) or an immediate
final agency decision (FAD). Appellant requested an immediate FAD.
On August 20, 1996, the agency issued a FAD finding no discrimination.
It is from this decision that appellant now appeals.
ANALYSIS AND FINDINGS
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant,
appellant herein, to initially establish that there is some substance
to his or her allegation. In order to accomplish this burden the
complainant must establish a prima facie case of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). This
means that the complainant must present a body of evidence such that,
were it not rebutted, the trier of fact could conclude that unlawful
discrimination did occur.
Here, appellant has not established a prima facie case of sex
discrimination, because he has not shown that any female computer
specialist remained in her position while he was reassigned, and because
the contractor personnel who replaced the computer specialists were
all male. Appellant has, however, established a prima facie case of age
discrimination, in that all of the contractor personnel who replaced the
computer specialists were under 40 years of age. Further, the individual
(male) who was assigned to interface with the contractor personnel was
under 40.
The burden now shifts to the agency to articulate a legitimate,
non-discriminatory explanation for its action. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard, the
agency need only produce evidence sufficient "to allow the trier of fact
rationally to conclude" that the agency's action was not based on unlawful
discrimination. Id. at 257. The agency has met this burden by explaining
that in the course of "downsizing," it eliminated its computer specialist
positions and replaced those employees with contractor personnel.
Regarding the "interface" duties, the agency explained that this was
not a new position, but a collateral duty assigned to an employee who
remained on staff in the area where contractor personnel were employed
after appellant and others had been reassigned.
Once the agency has articulated its legitimate, non-discriminatory 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 the complainant. Burdine, 450 U.S. at 256. In this case,
appellant has not established pretext. In his affidavit, appellant
expresses his disagreement with the agency's actions in replacing
positions with contractor personnel. However, a trier of fact cannot
find discrimination merely because an employee or adjudicator would
have preferred that the employer conduct its business differently.
Furnco Construction Corp. v. Waters, 438 U.S. 567, 580 (1978). Further,
pretext is not shown merely by questioning the wisdom of the employment
decision. Bruno v. City of Crown Point, Indiana, 950 F.2d 355, 364
(7th Cir. 1991). Accordingly, the Commission finds that appellant has
not established his claim of sex and age discrimination.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct. 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations