Favors v. Ruckelshaus, Civ. A. No. C82-1591A.

• Decision Date: 28 June 1983
• Docket Number: Civ. A. No. C82-1591A.
• Citation: 569 F. Supp. 363
• Parties: James F. FAVORS, Plaintiff, v. William D. RUCKELSHAUS, Administrator, United States Environmental Protection Agency, Defendant.
• Court: U.S. District Court — Northern District of Georgia

569 F. Supp. 363

James F. FAVORS, Plaintiff, v. William D. RUCKELSHAUS, Administrator, United States Environmental Protection Agency, Defendant.

Civ. A. No. C82-1591A.

United States District Court, N.D. Georgia, Atlanta Division.

June 28, 1983.

Dana E. McDonald, Mallard, McDonald & Horder, Atlanta, Ga., for plaintiff.

Jere W. Morehead, Asst. U.S. Atty., Atlanta, Ga., for defendant.

ORDER

FORRESTER, District Judge.

This action, alleging an unjustified failure of defendant United States Environmental Protection Agency (EPA; Agency) to promote plaintiff in a timely manner, is before this court on plaintiff's motion to dismiss or, in the alternative, for summary judgment. On March 14, 1983, this court ruled that based upon the materials presented in support of and in opposition to defendant's motion, defendant's motion shall be treated as one for summary judgment. Pursuant to the Fifth Circuit's decision in Hickey v. Arkla Industries, Inc., 615 F.2d 239 (5th Cir.1980), and Fed.R.Civ.P. 56(c) read in conjunction with Fed.R.Civ.P. 12(b), the parties were given ten days to present all material made pertinent to a Rule 56 motion. Subsequent to this ruling, the parties have filed their versions of undisputed material facts.

Plaintiff brings this action pursuant to six constitutional and statutory bases: (1) The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., (2) the Fifth Amendment to the United States Constitution, (3) the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, (4) the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et seq., (5) the Classification Act of 1949, 5 U.S.C. §§ 5101-5108, and (6) the Back Pay Act of 1966, 5 U.S.C. § 5596. Therefore, as to each claim, the court's inquiry is solely to determine whether there is any genuine issue as to any material fact and, if not, whether defendant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

The undisputed facts are as follows. Plaintiff, born on September 22, 1940, has been employed by defendant in its regional office since its inception. Plaintiff is presently an employee of defendant and holds a GS-12 grade position.¹ The position of "Equal Opportunity Specialist, GS-160-9/11 (functionally works as Minority Business Enterprise Specialist)" is the subject of this lawsuit. The vacancy announcement shows that this position has a "promotion potential to GS-11," and it is undisputed that it was written before anyone applied for and was interviewed for this position. It appears that in January of 1980, plaintiff bid on and was selected for this position which he held until July 11, 1982, at which point he was promoted to a new position in the Agency with a promotion potential of Grade 12.

Jesse Frank Payne, Jr., was also employed as an Equal Opportunity Specialist at the same time as plaintiff. On November 6, 1980, Mr. Payne was promoted to a GS-12 grade. On January 27, 1981, Mr. Otis Johnson, plaintiff's predecessor, refused to promote plaintiff to a GS-12 grade.

On February 19, 1981, plaintiff initiated an informal administrative complaint pursuant to 29 C.F.R. § 1613 through discussions with an EEO counselor. On April 5, 1981, plaintiff filed a grievance with the United States Environmental Protection Agency alleging race and age discrimination by Ms. Carolyn J. Russell, former Director of the Office of Civil Rights and Urban Affairs in the Atlanta Regional EPA Office; Ms. Russell is a black female. In this formal complaint, plaintiff outlined his perceptions of the following: (a) Ms. Russell's favoritism toward Mr. Payne; (b) antagonism by Ms. Russell toward plaintiff; and (c) how Ms. Russell created "back biting and dissension" among the Civil Rights staff.

On December 30, 1981, plaintiff's complaint was rejected by the Agency on the ground that the complaint was untimely. The Agency specifically ruled that plaintiff failed to contact an EEO counselor within 30 days following the alleged discriminatory act. The Agency reasoned that since the event out of which plaintiff's complaint grew was the promotion of Mr. Payne on November 6, 1980, and since plaintiff contacted an EEO counselor on February 19, 1981, the complaint cannot be accepted for processing pursuant to 29 C.F.R. § 1613.214.

On June 29, 1982, the EEOC affirmed the Agency's final decision.

Evidently, plaintiff also filed an administrative challenge of the grade classification of his position. On August 11, 1981, the Regional Administrator of Region IV issued to plaintiff a decision that plaintiff's position was properly classified as a GS-11. The fourth paragraph of this Position Classification Decision notified plaintiff of his right to appeal administratively the classification ruling. Plaintiff failed to file an appeal. See Affidavit of William A. Waldrop, Jr., ¶ 3. Plaintiff has sworn that the reason he did not appeal the ruling was because "as I understand it, a classification appeal cannot involve an agency's decision to lessen the duties of a job." Affidavit of James F. Favors, ¶ 7. It appears that this understanding by plaintiff was based upon his perception of the creation of a new position description that "was prepared by taking away certain duties from me and giving them to Mr. Payne, thereby justifying, or attempting to justify, the higher grade for Mr. Payne." Affidavit of James F. Favors, ¶ 6.

As stated previously, in July of 1982, plaintiff was promoted to a new position in the Agency with a promotion potential of Grade 12.

Based on these facts, plaintiff presents a series of arguments. First, he argues that he was eligible to be promoted to a GS-12 continuously from January 27, 1981. He alleges that the inconsistent treatment between himself and Mr. Payne is the essence of his claims. Second, plaintiff argues that the vacancy announcement did not prevent plaintiff's promotion on January 27, 1981. Third, he contends that the administrative decisions denying plaintiff's complaint as untimely were erroneous. While the Agency indicated that plaintiff should have initiated an EEO complaint following the promotion of Mr. Payne on November 6, 1982, plaintiff contends that the relevant date is January 27, 1981, when he allegedly became eligible to be promoted. Finally, plaintiff argues that the July, 1982, promotion was in the nature of a pretext; plaintiff asserts that although the July promotion was to a different position number, the duties were identical to his previous position.

Defendant argues simply that this is not a discrimination case:

The facts of this case raise only classification issues that should have been raised to proper administrative agencies of the government charged with the responsibility of assuring that proper classification decisions are made in federal employment.

Defendant's Supplemental Memorandum (filed February 4, 1983).

Hence, the legal and/or factual dispute between the parties is centered around three issues: (a) The point at which plaintiff should have initiated the EEO complaint; (b) whether plaintiff was "eligible" to be promoted to GS-12 continuously from January 27, 1981; and (c) the character of the duties inherent in the position that plaintiff was promoted to in July of 1982.

The court notes that no evidence is presented on the facts surrounding or the basis for Otis Johnson's rejection of plaintiff in January of 1981. Moreover, no evidence is presented on the issue of the reasons for Mr. Payne's promotion in November of 1980. Along these lines, the court notes that plaintiff has failed to file an affidavit pursuant to Fed.R.Civ.P. 56(f), outlining reasons why he cannot at this time justify his opposition to defendant's motion.

I.

As the EPA is an agency in the Executive Branch created pursuant to Reorganization Plan No. 3 of 1970, the applicable Section of the ADEA to this action is Section 633a of Title 29, which provides, in pertinent part, as follows:

(a) All personnel actions affecting employees ... who are at least 40 years of age ... in executive agencies as defined in section 105 of Title 5 ... shall be made free from any discrimination based on age.

(c) Any person aggrieved may bring a civil action in any Federal District Court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter.

(e) Nothing contained in this section shall relieve any Government agency or official of the responsibility to assure nondiscrimination on account of age in employment as required under any provision of Federal Law.

29 U.S.C. § 633a(a), (c), (e) (1976 & Supp. IV 1980). For purposes of analysis, the court shall assume that exhaustion requirements were met as decisions were rendered by the Agency and the EEOC.

In his complaint, plaintiff alleges that defendant violated the ADEA by (i) failing and refusing to promote plaintiff during January 27, 1981, to July 18, 1982, and (ii) requiring plaintiff to perform GS-12 duties without compensating plaintiff at GS-12 level. Complaint, ¶ 6 (filed July 30, 1982). Plaintiff is not alleging, therefore, that the selection criteria were subjective to the degree that it had an adverse impact on the whole selection process, and thus plaintiff was injured. Instead, plaintiff appears to allege that as a result of the subjective selection criteria utilized by Otis Johnson and Ms. Russell, plaintiff was treated differently because of his age status. Therefore, inasmuch as plaintiff appears to be alleging a disparate treatment rather than impact, the utilization of the McDonnell-Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) test is appropriate. See Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979); Cova v. The Coca-Cola Bottling Co., 574 F.2d 958 (8th Cir.1978); Bell v. Bolger, 535 F.Supp. 997 (E.D.Mo. 1982). Thus, a four-prong threshold showing is required; (1) plaintiff is a member of a statutorily protected age group; (2) a job vacancy existed to which plaintiff...