0120170657
03-27-2018
Ceola K.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Health Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ceola K.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Health Agency),
Agency.
Appeal No. 0120170657
Agency No. DHANCR150066
DECISION
On December 9, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 23, 2016, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
ISSUE PRESENTED
Whether Complainant established that the Agency's final decision, concluding she had failed to prove unlawful discrimination or retaliation, was not supported by the evidence in the record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Civilian Pay Technician at the Agency's Fort Belvoir Community Hospital (FBCH) facility in Fort Belvoir, Virginia.
Complainant filed a complaint alleging that she was discriminated against based on race (African-American), sex (female), color (Black), age (63), and reprisal (prior protected EEO activity) when:
1. From 2011 to 2015, two FBCH Labor Management and Employee Relations Branch Chiefs ("C-1") and ("C-2") harassed Complainant; took away her donated leave duty responsibilities; she was downgraded/demoted; treated disrespectfully; gave her the bulk of the work and did not acknowledge her work.
2. From August 2011 to October 2, 2015, management paid Complainant less for equivalent work compared to her male counterpart.
3. On March 27, 2015, C-1 accessed Complainant's personnel folder without permission or notice, and distributed/emailed her position description (PD) to various personnel within the FBCH, telling everyone that she was acting outside of the scope of her PD.
4. On June 4, 2015, management denied Complainant a promotion to a Budget Analyst, GS-12, position, and promoted a less qualified individual.
5. On August 14, 2015, C-2 denied Complainant's request for a desk audit.
6. On September 29, 2015, the Chief Financial Officer2 changed Complainant's rating scheme after she filed her EEO complaint.
The Agency accepted the complaint for investigation. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The instant appeal followed. Complainant filed no arguments on appeal.
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. (Aug. 5, 2015) (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").
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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. Co. 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, 441 U.S. at 804 n.14. 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). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, the responsible management officials provided legitimate, non-discriminatory reasons for the disputed actions, as detailed below.
Claim 1
C-1 (African American female, age 42) testified that she was not Complainant's supervisor, and had no authority to reduce Complainant's responsibilities, downgrade her or demote her. There is no evidence of record describing C-1 treating Complainant disrespectfully, or taking action to assign her the bulk of the work and failing to acknowledge her work.
The record further shows that in 2012 the Agency engaged in a widespread effort to review the classification of all positions, not just at Fort Belvoir, but throughout the National Capital Region, Medical Directorate. As a result, the Agency provided evidence that of thirty-six (26) positions reviewed at Complainant's facility, twenty-five (25) were downgraded. Complainant's position was among those downgraded as a result of the reclassification - her position was reduced from a GS-9 to a GS-8.
C-2 (Caucasian female, age 49) testified that she did not start working at FBCH until April 2013. She testified that the National Capital Region position classification review, where the initial decision was made to reduce Complainant's position from a GS-9 to a GS-8, took place prior to her arrival at FBCH. However, in 2013, C-2 was asked to perform two more classification reviews of Complainant's position. She stated that using the Office of Personnel Management (OPM) classification standards, she conducted the reviews and each one substantiated that Complainant's position was properly graded as a GS-8. Complainant did not filed an appeal with OPM from the classification decision.
C-2 denies treating Complainant disrespectfully, including with regard to her Leave Donor Program duties. She stated that Complainant was performing all the functions required for the Leave Donor Program, but should have only been providing requested information for processing requests to the Civilian Personnel Advisory Center (CPAC). Therefore, management decided to conform the practice to comply with procedures and CPAC took over its proper portion of the process. C-2 stated that this was not a demotion of the Complainant.
Similarly, C-2 also testified that the Voluntary Leave Transfer Program and the Family Medical Leave Act program should have been managed by the Civilian Personnel Office, which reports to the Office of Personnel Management. That duty, which Complainant had been handling under the former management, was also transferred.
Claim 2
The Agency provided evidence that Complainant was a Customer Service Representative, GS-8. Complainant compares her job to that of M-1 (male), who she alleged performed identical work. However, the record indicates that M-1 was not a Customer Service Representative, but a GS-12 Management Analyst, with duties that included supervisory responsibilities. The Deputy Budget Officer and Chief of Payroll confirmed that Complainant was a payroll technician with no supervisory responsibilities, and M-1 was a payroll supervisor at Walter Reed National Military Medical Center. He supervised two GS-8s and one GS-9, as well as a contractor.
Claim 3
C-1 stated that she had the full authority to access Complainant's position description, and pulled it off FASCLASS, a website that contains all the position descriptions for the organization that anyone can access. She confirmed that she needed the position description for business-related reasons to clarify Complainant's responsibilities. Both C-1 and C-2 also had the authority to access employee personnel folders as part of their Human Resources job responsibilities.
Claim 4
The Agency filled a vacancy for a Budget Analyst, GS-11/12, but Complainant did not "make the list of qualified candidates," eliminating her from consideration for the position. A Human Resources Specialist (Caucasian female, age 39) explained that Complainant did not make the qualified list because she did not provide appropriate information in her application package needed to verify time-in-grade and specialized experience at the next lower grade level. The record indicates that of the 31 applicants for the position, 23, including Complainant, were found not qualified for referral to the selecting official. The selectee, who was determined to be qualified, was of the same race, gender and approximate age as Complainant.
Claim 5
C-2 stated that when the request for a desk audit was first received in August 2014, they recommended not conducting it because the newly draft position description was not substantially changed from Complainant's current position description. However, C-2 said that she later performed the desk audit in September/October 2014. Based on the audit, she did not conclude that the position should be upgraded. The record contains written documentation of the audit and the grade evaluation justification.
Claim 6
The Deputy Budget Officer (Caucasian female, age 26), Complainant's supervisor in September 2015, denied any knowledge of prior EEO activity by Complainant during the period at issue. She also denied changing her rating scheme. The Chief Financial Officer (Caucasian male, age 38) stated he appointed the Deputy Budget Officer to her position and gave her the authority to establish new processes and eliminate system redundancies. He said the Complainant expressed concern with working for the Deputy Budget Officer because she was so young and did not know the work like she did. However, the Chief Financial Officer said that he told Complainant that the Deputy Budget Officer was a commissioned officer with a Master's degree, and he expected Complainant to help her learn any technical aspects of her job, while remaining opened to learning from the Deputy Budget Officer's expertise in many areas.
After careful consideration of the evidence of record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the Agency's articulated legitimate, non-discriminatory reasons for its actions as set forth above were pretext masking discrimination or retaliation. Beyond her bare assertions, we simply find no evidence that that would lead a reasonable factfinder to conclude that Complainant's race, color, sex, age or prior EEO were factors in the Agency's actions.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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.
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
_3/27/18_________________
Date
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.
2 It appears from the record that Complainant was actually referencing the Deputy Budget Officer.
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