01986101
05-12-2000
Thomas L. Wright, Complainant, Bill Richardson, Secretary, Department of Energy, Agency,
Thomas L. Wright v. Department of Energy
01986101
May 12, 2000
Thomas L. Wright, )
Complainant, )
) Appeal No. 01986101
) Agency No. 011497089
)
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency, )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning his
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> Accordingly, the appeal is accepted in accordance with 64
Fed. Reg. 37,644,37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the basis of sex (male) when his Project Manager position
did not transfer into a newly reorganized division in September 1996.
BACKGROUND
Complainant was a Project Manager, PG-9, in the Energy Options
Development Division (EOD) of the Tennessee Valley Authority's (TVA)
Technology Advancement Division (TA). His specialty area as reflected
in his position description and service reviews was Coal Gasification
and Co-production Technologies. During the summer of 1996, TVA was
involved in a study which resulted in a reorganization of positions
because of a different emphasis on technologies under development.
The EOD was eliminated and those functions of the division that continued
were transferred to the Energy Generation Technology Division (EGT).
The agency sent complainant written notice on September 6, 1996, that
his position did not transfer to the new organization.<2>
Complainant claimed that his work transferred to the new division, and
therefore, his position should not have been eliminated. He claimed that
a female co-worker's (the Co-worker's) PG-9 position was not eliminated
and she was transferred to the Environmental Energy Technology Division
(EET) because she was the only female in a technical position.
The Manager, EGT, averred that less than 50% of complainant's work
transferred and that the agency did not have sufficient funds to support
all of the work he performed. She stated that the new organization
divided energy technologies into clusters, and that the clusters under
her management called for a PG-10 to provide strategic direction, while
a PG-8 acted as project manager, and an SC-4 was project engineer.
She stated that complainant formerly performed strategic direction,
project management and engineering, and that the parts of complainant's
work that transferred were distributed among three employees; a PG-10,
a PG-8, and an SC-4.
The Manager, EET, averred that the Co-worker's duties did not change
from the old organization and that the new cluster she was assigned
to did not have a PG-10 to take over strategic direction. Thus, the
co-worker kept all of her prior responsibilities.
The agency issued a final decision finding that complainant failed to
establish a prima facie case of discrimination based on sex because
he failed to show that he was treated differently than similarly
situated employees not of his protected class. The agency noted that
the Co-worker was in a different job, and performed duties different to
those of complainant. Complainant appealed, arguing that the Co-worker
had the same duties and responsibilities as he in the old organization,
and that only her technical specialty, alternate fuels, was different
to his. He also argued that one hundred percent of his work transferred.
The agency argued in rebuttal that less than 60% of complainant's work
transferred to the new organization, and that this work was distributed
among three other employees. The agency argued that the decision
to maintain the Co-worker's position was based on the functions she
performed and not on sex. The agency noted that complainant failed to
provide any evidence to support his allegation.
FINDINGS AND ANALYSIS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Complainant has the initial burden
of establishing a prima facie case of discrimination. If complainant
meets this burden, the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Complainant must then prove, by a preponderance of the evidence, that
the legitimate reason articulated by the agency was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
This established order of analysis, in which the first step normally
consists of determining the existence of a prima facie case, need not
be followed in all cases. Where the agency articulates a legitimate,
nondiscriminatory reason for the actions at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis,
that is, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions, i.e. a reorganization, lack of
funding to support all of complainant's work, elimination of his position
because less than 60% of the work transferred to the new organization,
and distribution of his remaining work among three different employees.
Different managers made decisions affecting complainant's and the
Co-worker's positions. The Co-worker's duties remained identical to
those of the old organization.
The burden returns to complainant to demonstrate that the agency's
reason was a pretext for discrimination, that is, that the agency was
more likely motivated by discriminatory reasons. Burdine, 450 U.S. at
253. Complainant provided no evidence in support of his claim that the
agency eliminated his position based on his sex. Complainant fails to
prove that he was treated differently than similarly situated employees
based on sex, and has not proven that the agency's articulated reasons
were a pretext for discrimination based on sex.
CONCLUSION
Accordingly, the decision of the agency is proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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
May 12, 2000
________________________ _______________________
DATE Carlton 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ _________________________
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 Four other management level employees did not transfer to the new TA.
The record does not list the sex of these employees. Complainant was
terminated on September 26, 1997, by a RIF action which he appealed to
the Merit System Protection Board.