01A03019
04-26-2001
Robert E. Harding, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense (Defense Logistics Agency). Appeal No. 01A03019 Agency No. HC-96-001 Hearing No. 100-98-7311X
Robert E. Harding v. Department of Defense
01A03019
04-26-01
.
Robert E. Harding,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense
(Defense Logistics Agency).
Appeal No. 01A03019
Agency No. HC-96-001
Hearing No. 100-98-7311X
DECISION
INTRODUCTION
On March 16, 2000, Robert E. Harding (complainant) timely filed an appeal
with the Equal Employment Opportunity Commission (EEOC or Commission),
regarding the Department of Defense's (agency) failure to issue a final
agency action following its receipt of a decision by an Administrative
Judge (AJ). In accordance with 29 C.F.R. � 1614.109(i), the AJ's decision
became the agency's final action when the agency failed to issue a final
order within 40 days of receipt of the AJ's decision. This case pertains
to his complaint of unlawful 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 accepts the complainant's appeal
pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether complainant was discriminated
against on the bases of race (African American) and sex when:
1) He was denied higher pay for his GS-14 acting supervisory position; and
2) He was not told the rating of his desk audit.
BACKGROUND
Complainant, a Distribution Facility Specialist, GS-13, worked with
the Material Management Distribution Team, Defense Logistics Agency
Administrative Support Center in Ft. Belvoir, Virginia. In December
1994, Responsible Management Official (RMO) appointed complainant acting
supervisor of the Material Management Distribution Operations Office
(MMDOO). Complainant averred that RMO told him that he would receive
a temporary promotion and pay at the GS-14 pay level effective January
1, 1995. After the end of the first pay period, complainant discovered
that he was not receiving pay at the GS-14 pay level and questioned RMO.
RMO later informed complainant that his pay increase did not occur
because the position was officially encumbered by another employee who
had been reassigned to another unit. In August 1995, after management
forwarded a position description to personnel, a desk audit was conducted
of complainant's position. The desk audit substantiated an accretion of
duties performed by complainant at the GS-14 level, and the paper work
was processed to staffing, certifying the results of the audit. However,
before a decision could be made by management on the results of the audit,
all personnel actions ceased and were returned to the Admiral due to a
reorganization. Complainant never received the results of the desk audit.
On November 14, 1995, complainant filed a formal complaint. The agency
conducted an investigation, provided complainant with a copy of the
investigative report, and advised complainant of his right to request
either a hearing before an AJ or an immediate final agency decision.
Complainant requested a hearing before an AJ. On March 31, 1997, the
AJ remanded the complaint for a final agency decision, identifying the
issues accepted and rejected by the agency. After receiving clarification
from the complainant, the agency issued a decision on May 27, 1997,
accepting the above stated claims. On August 24, 1999, the AJ issued
a decision without a hearing, finding no discrimination.
The AJ found that complainant established a prima facie case of race
discrimination because he presented evidence that a Caucasian male
received pay at a higher level when he was temporarily promoted.<1>
The agency articulated a legitimate, nondiscriminatory reason for its
action, however, and the AJ found that complainant failed to prove
that the agency's articulated reason was pretext for discrimination.
With respect to issue two, the AJ determined that complainant failed
to state a claim, because he failed to show that he was injured when he
was not told the results of his desk audit. See 29 C.F.R. 1614.107(a).
ANALYSIS AND FINDINGS
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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Applying the standards
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
the Commission agrees with the AJ that complainant established a prima
facie case of race discrimination. However, the agency has articulated
a legitimate, non-discriminatory reason for its action, namely that
complainant's temporary position was encumbered by another employee
who had been reassigned to another unit. As a result, the agency was
unable to pay two managers for the same position. Complainant fails to
provide any evidence that the agency's proffered reason was pretext
for discrimination. With respect to issue two, we find that the
AJ properly dismissed the issue for failure to state a claim because
complainant failed to show that he suffered a present harm or loss with
respect to a term, condition or privilege of employment.<2> Moreover, we
note that the reorganization of complainant's office had the effect of
placing complainant in a new position with a new position description.
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we find that
the AJ's decision finding no discrimination was proper.
CONCLUSION
Accordingly, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__04-26-01________________
Date
1 The AJ found that complainant failed to establish a prima facie case
of sex discrimination because complainant did not present evidence that
a female was treated differently than he was under similar circumstances.
2 The Commission's federal sector case precedent has long defined an
"aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition or privilege of employment for which there is
a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).