Alvera L.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 7, 2018

0120160306 (E.E.O.C. Mar. 7, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Alvera L.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120160306

Hearing No. 410-2014-00404X

Agency No. DON-13-65326-00339

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 16,
2015 final order concerning her 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. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Administrative
Specialist, NO-1102-04, in the Contracting Department of the Space and Naval Warfare Systems
Center Atlantic in North Charleston, South Carolina. The Agency operated under a contribution-
based pay system linking an employee’s contribution to the Agency to that employee’s
compensation and base salary and any bonuses outlined in the Space and Naval Warfare Systems
Center Science and Technology Reinvention Laboratory (STRL) Joint Implementation Manual.
The difference between an employee’s assessed contribution score and the employee’s expected
contribution score forms the basis for decisions to adjust total compensation. After evaluating an

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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employee’s performance rating based on their written input and their supervisor’s input, the
employee’s expected score is compared to their assessed score. If an employee receives an
assessed score higher than his or her expected score, the system automatically computes a
minimum percentage for a salary increase.

On October 22, 2012, Complainant received her “Employee Notification of STRL Pay
Performance Assessment.” Complainant was rated as “Acceptable” overall. Complainant’s
supervisor (S1) documented three areas where Complainant could improve: communication, data
management, and customer relations. Complainant’s expected contribution score was 7.0, and
her overall assessed score was 6.3. Based on the STRL system, Complainant did not receive a
pay increase. Complainant did receive a bonus of $850.00 based on her contributions during the
rating period. Complainant believed that she deserved a pay increase based on the work she
performed during the rating period.

On November 19, 2012, Complainant’s fourth-level supervisor (S4) announced that the Agency
would be undergoing organizational changes based on several factors including the Agency’s
shift from single-award contracts to multiple-award contracts (MACs). As a result, seven
employees, including Complainant, were realigned. Complainant was realigned from the
Administration Branch to the Task Orders Branch. Complainant believed this was a demotion.
Complainant did not lose pay or benefits at the time of the realignment, which became effective
in January 2013, with the actual transfer occurring in April 2013.

In November 2012, Complainant claimed that she became aware that she was being paid at a
lower salary than three of her co-workers. Complainant stated that she did not know if the
identified co-workers were working under the same position description; however, they all were
Administrative Specialists working as Contract Administrators. Complainant claimed that she
inquired with S4 about unequal pay and S4 stated that the employees performed different levels
of work. Complainant estimated that the identified co-workers were paid approximately
$10,000.00 to $25,000.00 more than she.

On June 10, 2013, Complainant filed a formal complaint alleging that the Agency discriminated
against her on the bases of race (African-American), color (Black), age (59), and in reprisal for
prior protected EEO activity when:

1. On October 22, 2012, Complainant received her “Employee Notification of STRL
Pay Performance Assessment” overall rating from her supervisor and she was not
awarded a salary pay increase for the specified performance rating cycle;

2. On April 1, 2013, Complainant was reassigned from the Administrative Branch to
the Orders Branch of the Contracts Competency; and

3. Complainant became aware that she was making a lesser salary than her
counterparts performing the same work and tasks.

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the
case granted summary judgment in favor of the Agency, and issued a decision on September 28,
2015.

In the decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim (1), Complainant’s first-level
supervisor (S1) explained that the STRL system was a contribution-based pay and performance
system which computed an expected score based on where an employee’s salary was located on
the pay bad for that employee’s career path. S1 stated that after evaluating an employee’s
performance rating based on the employee’s written input and the supervisor’s input, the
employee’s expected score is compared to their assessed score to determine in what zone they
fell. If an employee received an assessed score higher than their expected score, the system
automatically computed a minimum percentage of salary increase or bonus. During the rating
period at issue, Complainant’s expected score was 7.0, but she received a 6.3 rating. As a result,
Complainant was only awarded an $850.00 bonus.

With respect to claim (2), Complainant’s third-level supervisor (S3) affirmed that it was her
responsibility to realign the workforce based on the new organizational structure to take effect on
January 29, 2013. S3 explained that due to the Agency’s transition to MACs, additional
resources were needed to support the increasing number of MAC task order requirements. S3
noted that Complainant was one of several employees who were realigned and the pay and
benefits of the realigned employees were not impacted.

Finally, regarding claim (3), management officials confirmed that while Complainant and her co-
workers have the same title, they did not perform the same level of work. For example, one
identified co-worker (CW-1) was a former contracting employee and was hired to fill a NO-
1102-05 position whereas Complainant was in a NO-1102-04 position. Likewise, the other two
identified co-workers (CW-2 and CW-3) came from different commands which led to them
performing higher-quality work. Complainant’s first-level supervisor (S1) affirmed that their
work was of significant difference in the complexity and scope of effort. By contrast, S1 noted
that Complainant sometimes performed work that was substantially equal depending on the
nature and complexity of the contract action.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were
pretextual. As a result, the AJ found that Complainant had not been subjected to discrimination
or reprisal as alleged. The Agency subsequently issued a final order fully implementing the AJ’s
decision. The instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment. Complainant
argues that Agency officials knew that she had filed multiple EEO complaints in the past and
continuously held her protected activity against her. Complainant claims that her realignment
was a demotion and was a devastating blow to her career. Complainant contends that the
circumstantial evidence reveals that she was subjected to discrimination and reprisal.
Accordingly, Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. The Commission finds that the AJ properly issued summary judgment as
the material facts are undisputed.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of discrimination and reprisal, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. More specifically, as to claim (1), S1 affirmed that
under the Agency’s contribution-based pay system and performance system it automatically
computed a minimum percentage for a salary increase and/or bonus for employees who received
a higher assessed score than their expected score. ROI, at 214. S1 stated that Complainant did
not receive a salary increase because her assessed score was 6.3 while her expected score was 7.0
for the rating period. Id. S1 noted in her assessment that Complainant needed improvement in
Teamwork and Communications, Management, and Leadership. Id. at 49. Nonetheless, S1
recommended Complainant for a bonus of $850.00. Id. at 214-15.

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With respect to claim (2), S1 explained that the Agency underwent a reorganization as a result of
the Command’s transition to a MAC environment, audit findings, and increased scrutiny of
service contracts. ROI, at 216. Consequently, Complainant and several other employees were
realigned. S4 affirmed that Complainant’s duties changed from administering large contracts to
processing task orders under MACs. Id. at 230. S4 confirmed that Complainant advised her that
she did not wish to be reassigned and that she considered the reassignment a demotion. Id. S4
advised Complainant that her pay and benefits were not impacted and that there were more
promotional opportunities in the task order branches due to the increase in the complexity of
work. Id.

Finally, regarding claim (3), Complainant identified three co-workers who she believed were
paid more than her for performing the same work. S1 and S4 explained that CW-1 was in a
higher pay band (NO-05) than Complainant, worked under a different position description, and
received more complex work assignments and more independence. ROI, at 217, 231. Further,
S4 stated that CW-1 possessed the knowledge, skills, and abilities to perform the functions of a
senior contract specialist. Id. at 232. S1 affirmed that CW-2 and CW-3 were originally hired at
other Commands; therefore, their salaries were previously set at those Commands. Id. at 217.
S1 noted that there were significant differences in quality and the complexity of Complainant’s
co-workers’ work products and that some were given more complex contracts due to their
previous experience, expertise, and capabilities. Id.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant’s protected classes were a factor in any of the Agency’s actions.
Complainant’s subjective belief that the management actions at issue were the result of
discrimination or reprisal is insufficient to prove pretext. At all times, the ultimate burden
remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s
reasons were not the real reasons and that the Agency acted on the basis of discriminatory or
retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds
that Complainant has not established that she was subjected to discrimination or reprisal as
alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final order, because the Equal Employment Opportunity Commission Administrative
Judge’s issuance of summary judgment was appropriate and a preponderance of the record
evidence does not establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 7, 2018
Date