01970090
11-13-1998
Wayne G. Bledsoe, Appellant, v. F. Whitten Peters, Acting Secretary, U.S. Department of Air Force, Agency.
Wayne G. Bledsoe v. U.S. Department of Air Force
01970090
November 13, 1998
Wayne G. Bledsoe, )
Appellant, )
)
)
v. ) Appeal No. 01970090
) Agency No. KHOF93369
)
F. Whitten Peters, )
Acting Secretary, )
U.S. Department of Air Force, )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC or Commission) from the final decision of the agency
concerning his allegation that the agency discriminated against him in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. Section 791 et seq. This appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
Whether appellant has proven, by a preponderance of the evidence, that the
agency discriminated against him on the bases of race (African American)
and physical disability (bilateral hearing loss, hypertension, and nervous
stomach/ulcer) when, on September 22, 1993, the agency informed him that
he would not receive a retroactive promotion or back pay for performing
the duties of an Equipment Specialist, GS-1670-11, from September 18,
1989 through September 17, 1990.
BACKGROUND
In a formal complaint filed on June 17, 1993, appellant alleged that the
agency discriminated against him as referenced above. The agency accepted
appellant's complaint and conducted an investigation. At the conclusion
of the investigation the agency notified appellant of his right to request
a hearing before an EEOC administrative judge (AJ) or a final decision by
the agency without a hearing. Appellant requested a hearing. The AJ,
finding no genuine issues as to any material fact in dispute, issued
a recommended decision (RD) without a hearing pursuant to 29 C.F.R. �
1614.109(e)(3), finding no discrimination. On September 16, 1996,
the agency adopted the RD and issued a FAD finding no discrimination.
It is from this decision that appellant now appeals.
At the time of appellant's complaint, he was employed by the agency
as an Equipment Specialist (general), GS-1670-9. Appellant testified
that on or about September 1989, his Supervisor had him assume the
duties of a co-worker who worked as a GS-1617-11 (GS-11 position).
Appellant further testified that he requested from his Supervisor that
he receive credit for performing those duties and be permanently placed
in the GS-11 position. However, appellant further testified that he was
specifically told by his Supervisor that there was a stopper list which
prevented him from being promoted at that time.
Appellant changed divisions and later learned that he had been detailed to
an Equipment Specialist Airframe and Airframe Equipment, GS-11 position,
from September 18, 1989 through September 17, 1990. On March 1, 1993,
appellant requested a temporary promotion and back pay for the time he
served on the GS-11 detail. However, the Equal Employment and Staffing
Specialist (Black, no disability)(Specialist) told appellant that a
mistake had been made and that the detail should have been to the GS-9
grade level, not GS-11; therefore, appellant was not entitled to a
temporary promotion or back pay.
ANALYSIS AND FINDINGS
Race Discrimination
Appellant's allegation of discrimination constitutes a claim of disparate
treatment which is properly analyzed under the three-tier order and
allocation of proof as set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
The AJ found that appellant failed to prove a prima facie case of race
discrimination. Even assuming he had established a prima facie case,
the agency has established legitimate, nondiscriminatory reasons for
its conduct. Specifically, the Equal Employment and Staffing Specialist
testified that the paperwork for appellant's detail indicated that
on September 11, 1990, a Standard Form SF-52 was issued requesting
the retroactive detail of appellant to an unestablished GS-1670-9
position for the period in question. However, an SF-50, Notification
of Personnel Action was issued on October 11, 1990, reflecting instead
a detail to GS-11 position. The Specialist explained the there was
an administrative error and that the position in question should have
been a GS-9, not a GS-11 position. There was nothing in the record to
indicate that appellant's Supervisor intended to detail appellant to
the GS-11 position. Appellant failed to show that the agency's reason
for its action was a pretext for race discrimination.
Disability Discrimination
Appellant can establish a prima facie case of disability discrimination
by establishing that: (1) she is an individual with a disability as
defined by EEOC Regulation 29 C.F.R. �1614.203(a); (2) she is a qualified
individual with a disability as defined by 29 C.F.R. �1614.203(a)(6); and
(3) she was subjected to an adverse personnel action under circumstances
giving rise to an inference of disability discrimination. See Prewitt
v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).
EEOC Regulation 29 C.F.R. �1614.203(a) states that an individual
with a disability is one who has a physical or mental impairment
which substantially limits one or more of such individual's major life
activities, has a record of such an impairment, or is regarded as having
such an impairment. Major life activities include caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.
Appellant has not established that he is a person with a disability as
defined by the regulations. The only evidence which appellant produced
concerning his alleged disability is the allegation that once his
Supervisor asked him whether he made enough money as a disabled veteran
together with his GS-9 salary. We agree with the AJ finding that this
comment is insufficient evidence to infer discriminatory motive based
on actual or perceived disability.
The Commission has reviewed the record, consisting of the investigative
report and exhibits, the RD, and the FAD. The Commission concludes that
the AJ accurately set forth the facts giving rise to the complaint and the
law applicable to the case. The Commission discerns no basis to disturb
the AJ's findings of no discrimination. Accordingly, the Commission
herein adopts the AJ's recommended findings of fact and conclusions
of law.
CONCLUSION
Accordingly, it is the decision of the EEOC to AFFIRM the agency's final
decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the 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. 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 (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. Both the request and the civil action must be Filing a request for
an attorney does not extend your time in which to file a civil action.
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
Nov 13, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations