0120082738
05-05-2009
Vincent J. Guerriero, Complainant, v. Paul Prouty, Acting Administrator, General Services Administration, Agency.
Vincent J. Guerriero,
Complainant,
v.
Paul Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120082738
Hearing No. 520-2007-00110X
Agency No. GSA-06R2PBSVJG12
DECISION
On May 29, 2008, complainant filed an appeal from the agency's May 2, 2008
final order concerning his equal employment opportunity (EEO) complaint
claiming unlawful employment discrimination in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
During the period at issue, complainant held a wage-grade position, as a
custodian and gardener, with the agency's Public Buildings Service (PBS),
in the Northeast and Caribbean Region (Region 2). On February 28, 2003,
complainant learned that wage-grade positions, including his position,
were to be abolished. Complainant signed a separation agreement
in April 2003, agreeing to retire with a buyout on August 1, 2003.
Believing that the separation was discriminatory, complainant contacted
the EEO office. Informal efforts to resolve complainant's concerns were
unsuccessful. On June 29, 2003, complainant filed a formal complaint
based on age and disability.
Just weeks earlier, another wage-grade employee, Reginald Jones, filed
a formal complaint on the same matter. 1 The record reflects that
Reginald Jones, a Mechanical Work Inspector also with PBS, in Region 2,
claimed he was the victim of unlawful employment discrimination on the
bases of age and race.
At the conclusion of the investigation, the complainant was provided with
a copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the matter was assigned to an AJ. In March
2007, the agency requested the consolidation of complainant's case with
Reginald. Jones' case.
On April 6, 2007, before ruling on the consolidation request, the AJ
issued a decision regarding complainant's claim of discrimination on
the basis of disability. The AJ determined that summary judgment
was appropriate, with respect to the basis of disability, because
there were no genuine issues of material fact. Specifically, the AJ
found that complainant was unable to establish a prima facie case of
disability discrimination. Even assuming arguendo that complainant was
a qualified individual with a disability, the AJ found that complainant
failed to show that he was treated differently due to his disability.
The AJ noted that most of the other employees also affected by the
abolishment of positions were not disabled. Further, the AJ concluded
that the agency presented a legitimate, non-discriminatory reason for
its actions: it was ordered by Office of Management and Budget (OMB)
to convert "non-governmental" positions to private contractors. The AJ
found that complainant presented no evidence of pretext.
Thereafter, on May 10, 2007, the AJ consolidated the remaining basis of
complainant's complaint (age) with the Reginald Jones case "solely for
the purposes of remaining discovery and trial." 2 The agency's motion
for a decision without a hearing was denied, and a hearing was held on
January 24, 2008 and February 8, 2008. Following the hearing, in her
decision, issued on April 24, 2008, the AJ found no discrimination.3
As an initial matter, the AJ determined that complainant presented a
prima facie case of age discrimination. All the positions selected to be
abolished and performed by private contractors were held by individuals
over the age of forty.
The AJ also found that the agency proffered legitimate, non-discriminatory
reasons for its actions. Agency management testified that in response to
the President's Management Agenda (PMA) requiring agencies to reduce their
full-time work force by 5% in 2002 and 15% in 2003, OMB decided to focus
on positions that "are not strictly governmental" to convert to private
sector. An agency official, with the assistance of hired consultants,
determined that the trade and craft positions were best suited for
such conversions. They determined that these positions had already
been subject to reductions via attrition, and were "highly commercial"
in nature and therefore more easily transferred to private contractors.
Additionally, the agency relied upon cost data which indicated that the
conversion of those functions would result in savings.
The AJ found that later studies revealed that it was not always a cost
savings to send the functions to contractors. However, the studies
themselves were costly, so the agency was permitted to directly convert
the first group of positions without such studies. Complainant was in this
first conversion. Thereafter, however, OMB issued revised instructions
which prohibited direct conversions. The agency was required to first
conduct a study before selecting positions for abolishment, to ensure that
they were more expensive than when performed by the private sector. Such
studies were conducted for the second and third group of positions,
which prevented those individuals from losing their jobs.
In an attempt to establish pretext, the complainant argued that the
fact that the second and third groups did not lose their positions
was indicative of age discrimination. The AJ disagreed, noting that
individuals in those later groups were not, as a whole, younger than
complainant's (first) group.
After finding no case of disparate treatment due to complainant's
age, the AJ conducted an analysis of the record for disparate impact.
Complainant established that all of the forty-four positions selected
for conversion, over three years, were held by individuals over the age
of forty. However, the AJ determined that "technically" complainant
failed to provide sufficient statistical data to support a prima facie
case of disparate impact because complainant did not show, for comparative
purposes, that others outside the protected category (i.e. employees under
the age of forty) could have been affected by the agency's neutral action.
Moreover, even assuming that complainant had established a prima facie
case, the AJ concluded that the agency presented reasonable factors
other than age for its action. As noted above, these positions were
selected due to the ease of simply accelerating the attrition process
that was already being utilized, the decision fit with the agency's
business strategy, and cost data at the time indicated a savings if such
functions were outsourced.
Finally, the AJ addressed complainant's assertions that the depositions
of two witnesses were taken in bad faith and therefore the agency should
bear the cost. According to the AJ, there was no evidence of bad faith
and denied complainant's request.
On May 2, 2008, the agency subsequently issued a final order adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, complainant first challenges the AJ's finding of no
discrimination based on disability. Complainant contends that because he
is a 50% disabled veteran, and was hired under a special authority, he
should be exempt from the agency's outsourcing. Complainant argues that
no other agency employee was 50% disabled and forced into retirement.
Complainant also states that the agency could have taken alternative
actions. Complainant asserts that 44% of the workforce is "commercial"
and other groups, that were not retirement eligible, could have been
outsourced instead. Complainant asserts that the AJ erred by reliance on
testimony rather than the record. In particular, complainant highlights
the defective "good cost data" relied upon by the agency.
Complainant contends that the agency's reliance on the PMA as a
legitimate reason is also flawed. According to complainant, the PMA
did not target positions but simply sought competition with the private
sector in non-governmental positions. Further, complainant states that
the agency erroneously testified that the PMA required down-sizing of 5%.
Complainant believes that the agenda only required cost studies to be
done on 5% of commercial positions.
Furthermore, complainant contends that the agency knew older persons were
wage grade. Complainant argues that "the protected class [of age] is
equal to wage grade employees." Complainant asserts that by targeting
wage-grade employees, the agency committed unlawful discrimination.
In response, the agency reiterates the AJ's reasoning that legitimate,
non-discriminatory reasons were presented for complainant's separation.4
The agency argues that the determination to outsource the trade and
crafts positions was due to OMB's implementation of the PMA and in
furtherance of a prior agency determination to reduce or eliminate those
positions. The agency asserts that it focused on positions, and not the
characteristics of the employees in those positions, in determining what
functions to outsource. The Region devised a three-year plan to achieve
the agency's goals. Those trade and craft positions that were most easily
convertible or absorbed into existing contracts were assigned to the
first group to be affected. Complainant's division, PBS, simply selected
the positions that matched that criteria in grade order (from lowest
to highest) and stopped after reaching the required eighteen positions.
Complainant's position, performing the gardening function, was part of a
janitorial contract and therefore was not considered a necessary separate
agency position. According to the agency, its action in removing the
trade and crafts positions was a lawful business decision. The agency
requests that the Commission affirm its finding of no discrimination,
arguing that complainant has not established that the AJ's decision is
unsupported by substantial evidence.
ANALYSIS AND FINDINGS
Disability
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
As an initial matter, the Commission finds that the AJ properly issued
a decision without a hearing with respect to complainant's claim of
disability discrimination. There is no genuine issue of material
fact. 5
First, we conclude that complainant did not establish a prima facie
case of disparate treatment because the outsourcing decisions impacted
all employees in the first group equally regardless of their disability
status. However, assuming arguendo that a prima facie case of disability
was presented, the agency has presented a non-discriminatory reason for
its actions. As noted above, the agency states that its decision to
outsource complainant's position was taken as part of the PMA requirement
that the workforce be reduced. Further, because complainant's position
was one that had been subject to attrition and was not considered strictly
governmental, it was one of the first selected for abolishment.
While complainant argues on appeal that he should be exempt from the
outsourcing, due to his status as a 50% disabled veteran, the Commission
notes that veterans' status is not a protected basis over which the
Commission has jurisdiction. See Witkowsky v. Department of the Interior,
EEOC Petition No. 03970122 (January 30, 1998). Therefore, whether or not
complainant was exempt for the outsourcing due to his veterans' status
cannot be adjudicated within the EEO complaints process. Consequently,
the AJ correctly determined that the record evidence does not establish
that complainant was subjected to discrimination based on disability in
violation of the Rehabilitation Act.
Age
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Disparate Treatment Claim
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
While complainant alleges that the agency's decision to abolish his
position was motivated by his age, the agency contends that it was
required to reduce its full-time positions and outsource non-governmental
functions as part of OPM's implementation of the PSA. In an attempt to
establish pretext, complainant argues that the basis of age is simply
equal to wage-grade employees. By focusing on wage-grade positions, the
agency committed age discrimination. Moreover, complainant challenges
the agency's decision, asserting that other options were available
(i.e. spread the conversion of forty-four positions over the entire
agency). He also points to the cost data relied upon by the agency,
which later was shown to be flawed.
The Commission, however, is not persuaded that the AJ's determination of
no discrimination was not supported by substantial evidence of record.
On appeal, complainant has not established that record fails to support
the AJ's conclusion that complainant did not prove, by a preponderance of
the evidence, that the agency's actions were motivated by discriminatory
animus based on complainant's age.
Disparate Impact Claim
As noted above, the AJ also evaluated complainant's claim of
discrimination under the theory of disparate impact. The Commission
has held that a claim of disparate impact discrimination may apply
under the ADEA against federal government agency employers. Witkowsky
v. Department of the Interior, EEOC Petition No. 03970122 (January
30, 1998). 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 through a presentation of statistical evidence that
demonstrates 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) (a complainant must present statistical evidence of a kind and
degree sufficient to show that the practice in question has caused the
exclusion). Specifically, a complainant must: (1) identify the specific
policy or practice 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 Kimble v. Department
of Commerce, EEOC Request No. 05950838 (June 20, 1997). If complainant
successfully establishes a prima facie case, the burden is then on the
agency to show the adverse impact was attributable to a "reasonable"
factor other than age. Smith v. City of Jackson, Miss., 544 U.S. 228,
239, 243 (2005) (the reasonableness inquiry does not ask "whether there
are other ways for the employer to achieve its goals that do not result
in a disparate impact on a protected class").
The Commission agrees with the AJ's finding that complainant failed to
establish a prima facie case of disparate impact. We find complainant did
not establish statistical disparities, in that there was no evidence that
employees under the age of forty could have been affected by the neutral
action. Moreover, even assuming that a prima facie case was presented,
we concur with the AJ's finding that the agency has presented several
"reasonable" factors other than age for its action.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the agency's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 5, 2009
__________________
Date
1 The record reflects that Reginald Jones was initially the class
agent for a proposed class complainant which included complainant.
In July 2004, an AJ denied certification of the class. Thereafter,
Jones filed an appeal from the agency's final order implementing the
AJ's decision. The Commission affirmed the rejection of the class.
However, the Commission reversed the agency's rejection of Jones'
individual complaint. The individual complaint was remanded to the agency
for further processing. See Jones v. General Services Administration,
EEOC Appeal No. 01A50310 (June 1, 2006).
2 As with the instant case, the AJ issued a decision dispensing with
Mr. Jones' claim of racial discrimination without a hearing. Consequently,
when the cases were consolidated, only the common basis of age remained.
3 While the instant case was consolidated with the Reginald Jones case
at hearing and the AJ issued one decision, separate appeals were filed
by complainant and Reginald Jones. The Reginald Jones case has been
assigned EEOC Appeal No. 0120082750.
4 The agency submitted one response to both complainant's appeal as well
as Reginald Jones' appeal.
5 We note that the decision was inaccurately titled "Partial Dismissal".
The AJ did not procedurally dismiss the claim, but rather addressed the
merits and found no discrimination.
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0120082738
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082738