0120112446
06-20-2013
Vernon M. Fuller, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.
Vernon M. Fuller,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Rural Development),
Agency.
Appeal No. 0120112446
Agency No. RD200700629
DECISION
On March 23, 2011, Complainant filed an appeal from the Agency's February 14, 2011, final decision (FAD) 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Area Director at the Agency's Tavares Area Office facility in Tavares, Florida.
On July 3, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. in February 2007, Complainant learned that the Tavares, Florida, Area Office, which he managed, was to be relocated to Davenport, Florida, reducing his service area by five (5) counties and his staff by ten (10) members;
2. on February 13, 2007, Complainant sent out a letter outlining his concerns with the proposed realignment to the Florida State Director1 (SD1: race unknown), which went unacknowledged;
3. in May 2007, the assistant2 Florida State Director leased inadequate office space, in Davenport Florida, for the Complainant and his remaining staff;
4. On or about June 7, 2007, Complainant was required to accept a directed reassignment to Davenport, Florida, effective July 17, 2007, or be separated from the Agency.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The FAD found that the Agency articulated legitimate nondiscriminatory reasons for its actions and that Complainant failed to establish that such reasons were pretextual. Specifically, The Agency found that management officials said that the Agency was undergoing a restructuring plan and that the "purpose of the plan was to balance the workload and FTE distribution among the six proposed Area Offices." With regard to Complainant's letter, the Agency found that after receiving the letter, SD1 met with Complainant and others "relative to the Business Plan and its effect on them." The Agency found that, contrary to Complainant's claims about the adequacy of the office space, the new office space was "adequate and within the [Agency's] regulations" and that Complainant had not shown that the area was unsafe. The Agency further found that "all employees received the same directed reassignment letter" as did Complainant.
The Agency further addressed the "directed reassignment" claim under a disparate impact analysis, finding that Complainant failed to present statistical evidence to demonstrate a statistical disparity that is linked to the development or implementation of the [Agency] Business plan."
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
We note initially that, following a review of the record we find that claims 1, 2 and 3 do not state separately judiciable claims but rather those claims have merged with the main claim, which is that Complainant alleges that the July 2007 directed reassignment to Davenport, Florida, was discriminatory and/or was done for retaliatory reasons. See Siegel v. Department of Veterans Affairs, EEOC Request No. 05960568 (Oct. 9, 1997).
Disparate Treatment
Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see Hochstadt v. Worcestor 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). Under this analysis, a complainant initially 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the Agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is Complainant's burden to demonstrate by a preponderance of the evidence that the Agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its action. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 17 (1983). The current Agency State Director (SD2: Caucasian) averred that the move was part of a:
business plan mandated by the National Office to restructure from a three tier to a two tier delivery organization. . . . The purpose of the approved structure was to balance the workload and FTE distribution among the six proposed area offices; this was accomplished and resulted in only one other area having one more FTE than the complainant in his assigned area. [SD1] provided guidance to establish area offices to the greatest degree possible within a 50 mile radius of existing local offices. The purpose was to mitigate the expense to the government relative to relocation expenses and adverse impacts to employees. The process that followed resulted in the configuration approved, not because race or reprisal of the complainant.
ROI, Exhibit 9, pp. 3-4
In addition, the May 29, 2007 Directed Reassignment letter to employees notified them that:
[Agency] Rural Development has directed the implementation of a new 2-tier business delivery system and restructuring to accomplish the execution of the business plan. In addition, the authorized personnel ceiling for Florida and [US Virgin Islands] has been reduced to 118.9. To comply with this directive, we are required to combine local office staff into the new area office organizational environment.
ROI, Exhibit 8, p. 57
The Agency having articulated a legitimate nondiscriminatory reason for its action, to ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); Hicks, 509 U.S. 502 at 511; Burdine, 450 U.S. at 252-52; Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Complainant maintains that on February 7, 2007, SD1 held a meeting of all the Florida Area Directors including Complainant wherein he unveiled a proposed business plan for the State. Complainant's Formal Complaint, p. 2. Complainant maintains that the business plan was developed by SDs 1, 2, & 3, as well as the HR Manager and that "[a]ll are White persons" id. p. 4, and that the Area Directors, who were the ones impacted by the plan, were all left out of the planning process. Complainant contends that the plan "slighted" his Office more than any other Area Office. See id. He said the plan "closed all Local Offices and created one new Area Office, for a total of six Area Offices" and that SD1 said he did not want any "super offices" which Complainant took to mean his own Tavares Office since it was "the largest Area Office in Florida, . . . [with] 25 employees including myself." Id. Complainant said that under the plan his office was the only Area Office required to move and, according to Complainant his new office in Davenport, Florida, is "47 miles from my current worksite," id. and that at the former facility "most if not all [employees] were in close proximity [to the office but now all must commute a minimum of 23 miles to arrive at work" Id., p. 63. In addition, Complainant said, the plan "called for my Area to lose five counties that are currently served by the office."
The person who became the State Director in February 2008 (SD2: Caucasian) averred that Complainant's one-way commute to work increased by just 4.33 miles and that this was "substantially less than the average increase of all employees of 13.9 miles." ROI, Exhibit 9, p. 4. In response Complainant noted that his one-way commute increased from 27 to 33 miles and that the average employee in the new office had to commute more than 30 miles one-way to work, with no one-way commute being less than 23 miles. See Exhibit 12, p.1. By contrast, Complainant averred, "a number of employees" for the other Area Offices lived "one to five miles from their work sites." Id. Complainant averred that the increased commuting distance was inconvenient for the Davenport Area Office employees and cost them more money, and that some of his employees have applied for positions closer to their homes. See id.
The Acting State Director at the time of the Formal Complaint in July 2007 (SD3: Caucasian) submitted a Narrative Restructuring Plan for the State outlining the impact of the plan. ROI, Exhibit 10, pp. 20-6. This document states that the "commute before the plan was on average 19.9 miles and after the plan 33.54 miles. The average change for all employees (state overview) is therefore 13.62 miles." Id. According to this document, which Complainant has not rebutted, and Complainant's statement above, the move to Davenport meant that while Complainant's commute increased overall, his commute went from being longer than the average to one half-mile below the average for all employees in the State, because the average commute increased for all employees statewide. Thus Complainant has not shown that the move to Davenport adversely affected his commute relative to other employees.
With regard to Complainant's argument that his office was the only one required to move, SD2 averred that the West Palm Beach office was also "scheduled for relocation in the approved plan, but due to financial concerns based on having to pay dual rents, the relocation of that office was delayed until the present time. A solicitation for new space is in the process." Exhibit 9, p. 5. Complainant, however, responded that relocation of the West Palm Beach office had been contemplated "for several years" before the plan because it "is in an undesirable portion of town. The area is populated by adult entertainment business and there is crime and other undesirable issues that make leaving the site a priority." Exhibit 12, p. 2
Complainant next contends that his office "has the largest minority population with ten (10) African American and Hispanic staff persons." Exhibit 8 p. 3. Complainant's Tavares office produced successful results, Complainant indicated, but the new office would cover a reduced service area, and did not include the counties that contributed the most to those results making it "very difficult to achieve the same level of production or to achieve a superior performance level." Meanwhile "the two Area Offices that will benefit from gaining counties currently serviced by my Area were lower producing [offices]. They are both managed by White male Area Directors." Complainant said that his new area included an "urban corridor [with] few rural areas to be served," id, p. 3, and that growth projections indicated more urban growth in the future. "As these areas grow, my service area shrinks, and eventually there will not be a need for this Area Office." Id., p. 15.
SD2 averred that:
The plan was designed to offer a centralized approach to the efficient delivery of Rural Development's portfolio of 40-plus programs with greater consistency. As stated above, in each case of Local Office consolidation, five factors were utilized: eligible and geographical areas; caseload; production; and location. Therefore, production was a factor for ALL areas, not just [Complainant's] area. . . . All offices were given the same caseload/workload measurements. Therefore, I see no evidence that supports the Complainant was singled out or singled out because of his race.
Exhibit 10, pp. 8-9 (capitalization in original).
In addition, SD2 submitted a document entitled Narrative Restructuring Plan - Two Tier Staffing Model, Florida/US Virgin Islands Rural Development. See id., pp. 20-6. This document listed the supposed benefits of the plan including benefits to Florida citizens through an:
increase[...] to 8 locations instead of the current 5 locations for the servicing of group loans. As a result, there will be more staff that have knowledge about the assisted programs and guaranteed programs with Rural Development. Therefore, we expect increases in effective outreach which will result in more group loans in targeted areas. In fact, with the less Area to cover and more employees with knowledge of the assisted programs we expect a strategic targeted outreach approach and therefore resulting in more loans/grants for assisted programs.
Id., p. 24.
With regard to benefits for employees, the document predicted:
a huge benefit [due to] more promotion and grade enhancement possibilities. In particularly for the current Local Office staff who had on average a lower grade average than the Area Office Staff. All Local Office Staff will be reclassified to Area Office staff in our plan. The Local Office specialists capped at a GS grade 9 while an Area Office Specialist may cap at a GS 11/12 (depending on level of responsibility, etc.). Promotion possibilities increase because Local Office staff will become Area Office staff and be introduced to Rural Development's assisted programs or group loans.
Employees will receive more money per person, on average, on training if the proposed restructuring plan is complete because lease costs will be lowered and that money will go to train individuals and also for their computer and other administrative needs. Again, the employee will have more opportunity for personal growth and grade enhancement opportunities.
Id.
SD2 averred that production data for Fiscal Year 2008 "reveal[...] the area is on track to exceed the FY 07 output. This indicator reflects the concerns outlined in the complainant's letter were not valid." Exhibit 9, pp. 6-7. Complainant in his rebuttal argued that:
The increased output is attributable to crisis [sic] in the housing market. All of the Area Offices are having an exceptional year, because of other lenders have severely curtailed their lending practices. Rural Development is one of the few lending sources that is operating in a business as usual mode. This is creating greater opportunity for our offices right now.
Exhibit 12, p. 2.
Complainant noted that he wrote a letter to SD1 "outlining my concerns" and proposing alternatives, but that SD1 "never even acknowledged the receipt of the letter." By contrast, Complainant said, when another White Area Director (AD) also wrote to SD1 requesting modifications of the plan's impact on AD's Area Office, SD1 not only responded both verbally and in writing to AD's concerns, he "agreed to return at least one county to his service area under the proposed plan." Id., p. 7.
Complainant said that the plan would reduce his staff from 25 to 15 employees and that the new office "is not part of an established community" and is five miles from the small town of Davenport, Florida. Complainant argued that "the area is punctuated by industrial warehouses, heavy equipment sales and storage yards, an interstate highway interchange and 'tourist trap' type establishments," See id., p. 7. With regard to the building, Complainant said that his office was required to share common hallways with a non-federal business which would have "full access to our space except when we kept doors locked" and that he was concerned for both the security of his employees as well as the security of the federal documents they handled. Complainant further noted that the space did not have enough private offices for all his staff.
SD3 averred that:
In my opinion, the space is adequate within [Agency] regulations. I am not aware of any [Agency] regulations that were not followed. I actually took extra time to ensure [Complainant and his staff's] concerns about safety were well researched. There was no indication that the area in Davenport was any more unsafe than any of our other offices. Due diligence was taken to vet his concerns. . . . a security buzzer system was installed, a wall was built between two offices, and walls were taken down to accommodate a mobile filing system. The door locks were replaced in the filing room. Doors were put in to secure the copy room (was a walk thru area). All individual door locks were changed to key locks. Locks were put on the copy room doors to better secure our assets.
Exhibit 10, pp. 10-12.
Complainant disputed the claims by management officials that Area Office Directors were consulted in any meaningful way about the reorganization plan. See Exhibit 12, pp. 1-2. He averred that "we had little if any input into the business plan" and that when another Area Office Director asked SD1 questions about the plan during a meeting, SD1 "responded that 'the decision was above [the questioner's] grade level'. The intent of his response was construed to mean that it was [SD1's] decision and we were not to question it." Id. Complainant further averred that the Florida reorganization was rushed, saying:
There was no sound business necessity requiring that the plan be finalized and for implementation to begin, so early in the process. The target date for full implementation was established from the outset by [Headquarters in] Washington as March 2008. The speed with which implementation of the plan was undertaken negated the opportunity for full due diligence to be applied and for the best resolve for the benefit of the affected employees to be achieved. The March 19, 2007 letter from [SD1] to the Area Directors gives a clear indication of the lack of input and support for the Plan as developed. Area Directors had little input. The Plan was put together by a select few, which excluded minority involvement within the core body. Once formulated, there was no opportunity to get changes made.
Id., p. 5
AD averred that in his opinion the restructuring plan was rushed and that that "race and/or prior EEO filings were a factor in the decision to move the Tavares Area Office to Davenport." Exhibit 13, p. 8. AD said that when Complainant asked SD2 "'would you have moved the Tavares Area Office to Davenport if you were still the Area Director?' [SD2] never replied with a 'yes' or a 'no' response." Id. AD further noted that in his opinion SD's 1&2 treated African American males differently and also retaliated against employees who challenged them. See id., pp. 8-9.
SD's 2 & 3 denied that the restructuring plan was discriminatory or that it was rushed. SD3 averred that "ALL offices were given the firm June 30 target date to move." Exhibit 10, p. 9 (capitalization in original). SD3 further averred that the March 2008 date was for the full restructuring plan but that:
restructuring is not only office closures . . . [and that the Offices in the State were] still in the process of finalizing the restructuring process. Possibly in a year the full restructuring will be complete, in my opinion. For example Merit Promotion opportunities and cross training is [sic] still occurring. [Complainant's] Merit Promotion announcements are currently on target to run on USAJobs this week (Feb 08). He is aware that is part of the restructuring process and implementation.
Id., pp. 6-7
Following a review of the record, we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that discrimination based on race or reprisal occurred. The record shows that the restructuring plan affected all employees, not just Complainant and the effect on Complainant's commute was less than on most employees in the State. While Complainant believed that the new office was in an undesirable location, even assuming Complainant could show he incurred a harm from the move, other employees outside of his protected basis were also moved to the same location, which does not support his claim of disparate treatment. Complainant maintains that the move would have a negative impact on his Office's production but the record shows that in FY 08 his production increased. Complainant maintains that this was an aberration based on reduced lending from other lenders due to the 2008 housing crisis, thus leaving the Agency's lending as one of the few sources of loans available to the public. However Complainant's forecast of future declining production for his office is speculative and insufficient to show he incurred an adverse action. Even assuming such a future decline in production for his office, the fact remains that other employees outside of Complainant's protected basis would face similar production declines, which again does not support his claim of disparate treatment.
The record shows that none of the Area Directors, including Complainant, were provided meaningful input into the restructuring plan. While allowing the Area Directors such input may have been sound management practice, the fact that all the other Area Directors, who were all outside of Complainant's protected basis, were similarly not provided meaningful input again does not support his claim of disparate treatment. With regard to AD's affidavit, while he said that he believed the Agency's action was based on race discrimination and/or reprisal, he was unable to provide specific reasons for his belief other than to state that two other senior African American male employees "have since left the Agency under duress," Exhibit 13, p. 8, and that if employees questioned SD1's "decision making ability then that employee was treated differently." Id., p. 9. The Agency found that Complainant failed to establish a nexus between any prior EEO activity and the alleged action and we agree, noting that the record does not show when Complainant engaged in prior EEO activity.
Disparate Impact
No evidence of discriminatory intent is needed when establishing discrimination under a disparate impact theory. Geller v. Markham, 635 F.2d 1027, 1032 (2d Cir. 1980), cert. denied, 451 U.S. 945 (1981); In general, to establish a prima facie case of disparate impact, a complainant must show that an agency practice or policy, while neutral on its face, disproportionately impacted members of the protected class. This is demonstrated through the presentation of statistical evidence that establishes a statistical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988) (complainant must present "statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion"). Specifically, the complainant must: (1) identify the specific practice or practices challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy. Id. The burden is on the complainant to show that "the facially neutral standard in question affects those individuals [within the protected group] in a significantly discriminatory pattern." Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines v. Department of the Navy, EEOC Petition No. 03990119 (August 31, 2000).
Following a review of the record we find that Complainant has not met prong (2), above. Complainant avers that his office "has the largest minority employee population with ten (10) African American and Hispanic staff persons," Exhibit 8, p. 5, and that:
the average employee in the new Davenport office commutes more than 30 miles one-way to work. No employee is less than 23 miles from the office. All of the other Area Offices have a number of employees that are one to five miles from their work sites. Formerly, many of the Tavares Area Office employees were similarly located.
Exhibit 12, p. 1
Such figures, however, do not show a statistical disparity because Complainant has not shown that the average commute for African-American employees increased relative to others. We note that the Narrative Restructuring Plan for the State states that the "commute before the plan [for all employees] was on average 19.9 miles and after the plan 33.54 miles. The average change for all employees (state overview) is therefore 13.62 miles." Exhibit 10, p. 23. Thus according to Complainant's figures, after the move the average commuting distance for employees of the Davenport Office was less (30 miles) than it was for employees as a whole (33.54 miles).
Nor has Complainant submitted any other statistics showing a statistical disparity between African American employees either as a whole or specifically in the Davenport Office, and others. We therefore find that Complainant has not met his burden of establishing a prima facie case of disparate impact.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that the Agency engaged in discrimination or reprisal, and we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
June 20, 2013
__________________
Date
1 The record shows that SD1 left the Agency on May 25, 2007. The Agency investigator was unable to obtain any information from this witness. See Report of Investigation (ROI) p. 7.
2 In listing the claims on page 1 of the FAD, the Agency identifies this person as the Assistant State Director. However in the body of the FAD this person is identified as SD1.
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0120112446
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112446