0120123521
03-15-2013
Barbara Darby, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Barbara Darby,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123521
Hearing No. 570-2011-00179X
Agency No. 2004-0558-2010103014
DECISION
On September 17, 2012, Complainant filed an appeal from the Agency's August 16, 2012, final decision 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Support Assistant at the Agency's Central Office facility in Washington, D.C.
On June 10, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Complainant was denied a career ladder promotion to the GS-9 level in her Program Support position; and
2. On April 30, 2010, management changed Complainant's position from Program Support Assistant, GS-303-8, to Secretary, GS-318-8.
The complaint was accepted for investigation. The investigation revealed that in June 2005, Complainant was hired into her Program Support Assistant position at the GS-8 level. The position description indicated career-ladder promotional potential to the GS-9 level. For fiscal years 2006 - 2009, Complainant's work performance was appraised as "fully successful," both in her overall rating and on each of her critical performance elements.
In June 2007, Complainant and her first-level supervisor ("Supervisor") (race not identified in record) met with the Administrative Officer (Caucasian) to discuss Complainant's request for a career ladder promotion to the GS-9 level. The parties agree that at this meeting, the Administrative Officer explained that it was the office's policy to hire Program Support Assistants at the GS-7/8 level since GS-9 duties were only available for one program support staff person. The Administrative Officer stated that she also discussed the quality of Complainant's work with her at this meeting, including examples of repeated errors and "attitude" problems regarding her execution of teamwork and customer service. Complainant, however, denies there were any discussions with her of performance problems. The Administrative Officer stated that the Supervisor had not recommended Complainant for promotion to GS-9 and she concurred.
Complainant continued to make periodic requests for a promotion to the GS-9 level, which were denied. She alleges, however, in her brief on appeal, that two Caucasian employees received career ladder promotions during this time - a Health Scientist Specialist was promoted to GS-12 in December 2008, and a Program Support Assistant was promoted to the GS-8 level in April 2009.
In October 2008, Agency's Office of Human Resources, located in Durham, North Carolina, conducted a review of the program support assistant positions in Complainant's office. As a result of a desk audit, Human Resources concluded that the GS-303 (Program Support Assistant) positions had been misclassified and did not describe duties that went beyond the GS-7 level. While the Administrative Officer and upper level management were aware of the results of the desk audit, no action was taken at the time to rectify the situation.
In February 2009, the Administrative Officer conceded that a Human Resources Specialist had recommended to her that Complainant receive the promotion, but she believed the advice was "wrong" because she knew that the results of the desk audit had shown there was no work in the position at the GS-9 grade level. Therefore, she did not believe she could promote Complainant into a grade level that did not exist
In February 2010, Complainant filed an administrative grievance over the denial of her requests for a career ladder promotion alleging discrimination. In preparation for a resolution attempt of this matter, Human Resources in Durham was again consulted by management. A February 18, 2010 email from the same Human Resources Specialist to the Administrative Officer acknowledged that career ladder promotions are not mandated, but indicated it was "a violation of Merit Systems Principles to promote everyone else on the PD [position description] and have no written justification for not promoting [Complainant] . . . to deny the promotion must be based on objective evidence, which we discovered last year - you do not have."
Still concerned that Complainant could not be promoted in a position that did not support the grade, a decision was made by management to now take action to correct the classification error. To avoid a reduction in grade for Complainant (a GS-8) and the four other program support assistant employees (three Black, one Caucasian), these positions were reclassified as Secretary, GS-0318-8 positions because the GS-318 series allowed for duties at the GS-8 and GS-9 levels. The Administrative Officer informed Complainant of the decision on April 30, 2010,1 and she received an official memorandum formalizing the reassignment on May 20, 2010.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency's decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency found that the responsible management officials provided legitimate, nondiscriminatory reasons for their actions, as detailed above. The Agency then found that Complainant did not produce sufficient evidence to prove that management's proffered explanations were actually a pretext for discrimination. As such, the Agency concluded that Complainant did not show that she was subjected to discrimination.
This appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, the Commission finds that the Agency provided legitimate, nondiscriminatory reasons for its actions. The Supervisor did not recommend Complainant for the promotion. The Administrative Officer stated that Complainant's quality of work included repeated errors and noted Complainant's attitude problems regarding team work and her performance. Further, Administrative Officer also indicated that there was no work in the position for the GS-9 level. As such, the Administrative Officer concurred with the Supervisor's decision not to recommend Complainant for promotion to the GS-9 level.
Further, as to the reassignment, a desk audit conducted by the central Human Resources office determined that the Program Support Assistant positions were misclassified and that this position did not describe duties that went beyond the GS-7 level. As a result of the desk audit, to avoid a reduction in grade for Complainant and the other employees occupying the position, they were reassigned to the Secretary position as it went up to the GS-8 and GS-9 levels. Therefore, Complainant and other Program Support Assistants were reassigned to the Secretary position.
Finding that the Agency has met its burden, Complainant must prove, by a preponderance of the evidence, that the Agency's proffered reasons constituted pretext for discrimination. Upon review, we find that Complainant has failed to do so. On appeal, Complainant argues that there were comparators who received career ladder promotions while she did not. Complainant asserts that this contradicts the Administrative Officer's argument that there was no GS-9 work available. However, only two individuals were identified in Complainant's brief. One named individual - a Health Scientist Specialist who was promoted to the GS-12 level - is not a valid comparator because she was in a completely different position than Complainant. The other named comparator - a Program Support Assistant who was promoted to a GS-8 position - was not treated more favorably than Complainant because Complainant was also at the GS-8 grade level. Complainant has not explained how the promotion of these individuals was related to work performed at the GS-9 level within her position. Therefore, we find that Complainant has not established that these individuals provide support to her claim that she was subjected to discrimination.
Complainant also asserted that the Human Resources Specialist, in emails, indicated that Complainant should be given the retroactive promotion and that the promotion process seemed arbitrary. The Human Resources Specialist indicated that of the seven employees in Complainant's position, four were promoted to the GS-9 level and three (including Complainant) had not reached that level. However, these emails alone do not prove that Complainant was subjected to discrimination. We note that the identity of the alleged comparators, including information on race and/or prior participation in EEO activity, was not provided. Further, there is no information on when the alleged promotions occurred or any other information surrounding these promotions. The record does not include an affidavit from the Human Resources Specialist with an explanation of her advice to promote Complainant. Complainant had initially requested a hearing, but later withdrew her request. Had Complainant not withdrawn the hearing request, she could have called the Human Resources Specialist as a witness who could have provided more information for the record. In addition, Complainant, represented by legal counsel, provided a brief in support of her complaint. As already noted, Complainant should have provided us with information on possible comparators, but failed to do so.
Complainant also challenged the assessment of problems with her work performance and states that she was never notified of any problems. However, the record shows that the Supervisor's narratives in the Complainant's performance appraisals reflect the concerns the Supervisor had with Complainant's errors and interpersonal issues.
In sum, we find that Complainant has not demonstrated that the Agency's promotion decision constituted discrimination based on her race and/or prior protected activity.
As to the reassignment, Complainant asserted without evidence that the reason for the Agency's decision to reassign her was her race and prior EEO activity. In light of the fact that the Agency has articulated a legitimate reasons for the reassignment, as well as the fact that the other employees in Complainant's position were also reassigned, we find that these assertions alone are insufficient to establish that the reassignment was discriminatory.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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.
RIGHT TO REQUEST COUNSEL (Z0610)
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
March 15, 2013
__________________
Date
1 On March 12, 2012, Complainant and her representative had met with the office director who also notified them of the results of the desk audit and the plans to reclassify employees into a different job series to avoid down-grading them.
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0120123521
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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