Chu R.,1 Complainant,v.Robert L. Sumwalt, Chairman, National Transportation Safety Board, Agency.

Equal Employment Opportunity Commission

Jul 3, 2018

0120161490 (E.E.O.C. Jul. 3, 2018)

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

Chu R.,1
Complainant,

v.

Robert L. Sumwalt,
Chairman,
National Transportation Safety Board,
Agency.

Appeal No. 0120161490

Agency No. NTSB201503

DECISION

On March 18, 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
March 9, 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant teleworked full-time from her
Texas residence as a Staff Assistant, GS-0303-07 for the Agency’s Office of Aviation Safety
(OAS) headquarters facility in Washington, D.C. Her first level supervisor (S1) was OAS’ GS-
14 Assistant Deputy Director of Administration. Her second-level supervisor (S2) was the OAS’
SES-level Managing Director.

The record shows that when the Agency decided to close five Office of Highway Safety (OHS)
regional offices in January 2013, Complainant was the only employee expected to relocate from
Texas to Washington, D.C. while other displaced employees were converted to full-time
teleworkers from their respective residences. Complainant stated that she filed an EEO
complaint, and on May 22, 2013, she signed a "Settlement Agreement" that allowed her to

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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remain in Texas as a full-time teleworker if she agreed to be transferred to OAS in Washington,
D.C., withdraw her EEO complaint, and take a two-grade demotion to a GS-7 grade level
(effective July 14, 2015). Complainant states that in accepting these terms, she was assured by
the Human Resources Director that the demotion from GS-9 to GS-7 would not impact her
eligibility if she applied for positions above the GS-9 level.

Since 2012, Complainant has filed several EEO complaints, and she has named S1 and S2 in
some of them. A few complaints were still pending at the time of the instant complaint. Both of
Complainant’s supervisors admitted to being aware of Complainant’s prior EEO activity.

On April 30, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), color (black), and/or reprisal
for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. Specifically,
Complainant alleged:

1. Whether Complainant was discriminated against because of retaliation for prior
EEO activity when on September 22, 2015, she learned that she was not qualified
and/or selected for the position of Budget Analyst, GS-0560-11/12/13 under
Vacancy Announcement No. CFO-1394814.

2. Whether Complainant was discriminated against because of retaliation, race
(African-American), and color (black), on February 26, 2015, when her request to
be promoted to the GS-11 level was ignored by management.

3. Whether Complainant was discriminated against because of retaliation, race
(African-American), and color (black), when on February 24, 2015, she learned
that the administrative positions held by two White employees (CW1 and CW2)
assigned to the OAS in the Washington, D.C. headquarters are graded at the full
performance level of GS-l1, while her administrative position is graded at the GS-
07 full performance level.

4. Whether Complainant was discriminated against because of retaliation, race
(African-American), color (black), and sex (female), when:

a. On September 24, 2015, she was treated disparately when she was not selected
for a detail assignment in the OHS after repeatedly requesting higher level duties
and responsibilities so that she could gain the required specialized experience.

b. On March 11, 2015, she learned that the Agency engaged in an unfair
personnel practice by creating a new position for a White male OHS employee.
This occurred after Complainant was repeatedly denied reassignments to positions
above the GS-9 grade level, requests for promotions to higher-grade levels, and
requests for detail assignments in order for her to gain the specialized experience
required for higher-grade levels in the OHS.
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c. On February 27, 2015, Complainant learned that a White male was selected for
the position of Highway Accident Investigator GS-11/12/13/14, after her
application was rejected for consideration under Vacancy Announcement HS-
11085578-MIB, and Complainant was repeatedly denied requests for higher level
duties and responsibilities and requests for detail assignments in order for her to
gain the specialized experience required for investigative positions in the OHS.

After 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.

With respect to claim 1, in which Complainant alleged that the Agency retaliated against her
when she was not qualified or selected for a Budget Analyst position, the Agency found no
reprisal. The record showed that the Agency required one year of specialized experience at the
grade 9 level. A Human Resources (HR) Specialist determined that Complainant did not possess
the requisite specialized experience even though she had been a Grade 9 for over a year in
another position. The HR Specialist also determined that Complainant did not have the
educational substitute of a Ph.D. degree to qualify her in lieu of the specialized experience.
According to the Agency, Complainant’s resume showed she had significant experience
preparing travel vouchers, processing procurements, and reconciling credit card transactions, but
her resume failed to show she had any knowledge, training, or experience in executing major
administrative appropriations procedures, federal budget execution, or evaluating funding
sources and/or documentation as required for the position. Further, the Agency found that
Complainant’s resume had no dates or grade levels from which the HR Specialist could
determine the length of time or grade level of the “specialized experience” Complainant claimed
to possess. Finally, while Complainant had obtained two Associate degrees and completed
coursework associated with a Bachelor’s degree, she did not possess a Ph.D. in accounting,
finance, or business administration. The Agency found that Complainant failed to dispute the
finding that she lacked the qualifications or to show pretext since the only applicants the HR
Specialist referred for consideration possessed the requested credentials. The
Agency further found that there was no basis for finding retaliation since ultimately no one was
selected for the position.

Regarding claims 2 and 3, the Agency found that Complainant did not establish a prima facie
case of discrimination or reprisal because she suffered no adverse action. Specifically, regarding
claim 2, the Agency found that S1’s failure to respond to the email did not constitute an adverse
employment action since her request was not in response to a vacancy announcement or a
noncompetitive promotion opportunity. Next, regarding claims 2 and 3, the Agency found that
Complainant had reached full GS-7 performance level of her position and she did not provide
any evidence that she was entitled to a noncompetitive promotion to GS-11.

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The Agency also found that there was no basis for finding discrimination or reprisal when
Complainant was not promoted because the two GS-11 employees had higher level duties and
responsibilities than Complainant and thus were not similarly situated. The record shows that
although CW1’s title was Staff Assistant like Complainant, CW1 actually served as an Executive
Assistant for the Director responsible for assisting the Director, Deputy Directors, and Assistant
Deputy Director for Administration with the day-to-day operations of the office in addition to
other technical and administrative functions. CW2 was an Administrative Officer responsible for
developing and implementing administrative policies that affect the ability of OAS to meet its
goals and objectives. Additionally, CW2’s position description indicated that CW2 served as the
first point of contact for all OAS administrative and management staff for budget, travel,
training, and other administrative policy and practice questions. In contrast, Complainant’s GS-7
position description in the record indicates that she is responsible for executing a variety of
administrative programs such as budget, human resources, payroll, training, logistics, and travel.
The Agency also found that because Human Resources and not S1 set the grades for the
positions, Complainant failed to show how the disparity in the grades was the result of
discrimination or reprisal.

As for claims 4a-c, the Agency found that it restricted the September detail to GS-14 and GS-15
headquarter employees in Washington, D.C. because the detail in question was in direct support
of the work of the Deputy Director who was serving as the Acting Office Director in
Washington, D.C. and the assignments needed to be carried out in Washington, D.C. In that
Complainant did not apply for the position, did not meet the grade qualification for the job, and
proffered no evidence demonstrating that the Agency’s eligibility restrictions were a pretext for
discrimination, the Agency found no basis for concluding that Complainant had been a victim of
discrimination or reprisal.

Similarly, the Agency found no merit to Complainant’s allegation that the Agency engaged in an
unfair personnel practice of grooming and advancing White employees when it created a position
for a White male OHS employee who was selected to be a GS-15 Natural Resource Specialist.
Evidence in the record revealed that the position was not newly created, but rather an existing
position that had remained vacant for a while. Further, the record shows that the vacancy was
publicly announced, open to all U.S. citizens, the selectee had to compete for the position (even
though it was a demotion from his current SES-level Director job), and that the selectee
possessed the experience and credentials for the position. Lastly, the Agency found that
Complainant’s nonselection for this position was not the result of discrimination or retaliation
since she did not apply for the job.

Finally, the Agency determined that Complainant’s nonselection for the Highway Accident
Investigator position was based on a legitimate, nondiscriminatory reason when Human
Resources decided that Complainant did not meet the minimum education or experience
requirements for the job. Although Complainant claimed to have more education than the Chief
of Investigations, a White male who only possessed a high school diploma, record evidence
established that the Chief had extensive specialized experience in the field of highway safety and
investigations for which he received numerous awards.
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Further, the record revealed that while Complainant had been a GS-9 for a year and had
extensive administrative experience, she lacked the requirements set forth in the vacancy
announcement such as specialized experience in: independently conducting operational activities
related to motor carrier operations and commercial driver compliance to appropriate regulations;
verifying compliance with applicable federal and state regulations; participating in highway
transportation accident investigations; and interviewing witnesses, evaluating evidence, and
writing analytical and investigative reports. In that Complainant did not proffer any evidence
establishing that she possessed these qualifications required for this position, the Agency found
that she had not proven pretext and therefore had not been subjected to discrimination or reprisal.

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”).

On appeal, Complainant seeks to amend her complaint for with new claims for the first time
raised on appeal. New claims cannot be added on appeal to the complaint, but if Complainant
wishes to pursue such claims she should contact an EEO Counselor pursuant to 29 C.F.R.
§1614.105.

In consideration of the record and all the issues raised in the complaint under review, the
Commission also finds no error warranting reversal of the Agency’s final decision. With respect
to claim 1, Complainant did not produce any evidence beyond her own belief and unsupported
affirmation in response to the questionnaire that she possessed the specialized experience stated
in the vacancy announcement. As the Human Resources Chief noted, the job announcement
stated that the candidates need at least one year of specialized experience to qualify and that the
applicants must clearly document this experience. Complainant's resume reflected one employer,
the Agency, with a work period from 1988 to the present, that listed various duties but did not
indicate her grade level and did not describe any specialized experience that would support
eligibility for the Budget Analyst position. Although she had been a grade 9 for at least a year
during her career, the grade level by itself, was not sufficient to qualify Complainant for the
position.

Regarding claims 2 and 3, we find that Complainant presented no evidence to substantiate her
claims that she was subjected to discrimination or reprisal when S1 did not respond to her
demand to be promoted to GS-11 and when she learned that two White employees assigned to
OAS were graded at GS-11.
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Notably, the record indicates that Complainant entered a settlement in which she agreed to
accept a demotion to GS-7 for a staff assistant position that has no promotion potential in order
to remain in Texas and full-time telework for OAS in Washington, D.C. The record also reveals
that the Agency has afforded Complainant training opportunities and advisory counseling so that
she may obtain the appropriate credentials and experience to become a Highway Safety
Investigator but she withdrew from the Shadow program that she requested. Lastly, the record
shows the scope and level of CW1 and CW2’s duties and responsibilities are different than those
described in Complainant’s position description and performed by Complainant.

The Commission affirms the Agency’s findings of no discrimination regarding Claims 4a-c.
Complainant did not apply for the position in question. Also, Complainant was not eligible for
the September 2015 OHS detail assignment since she was not a GS-14 or GS-15. Complainant
did not present any evidence demonstrating that the grade restriction or limitation of the
candidate pool to Washington, D.C. Headquarter employees was designed to discriminate or
retaliate against her. We find that Complainant did not establish that the Agency engaged in
discrimination or retaliation against her when it hired a White male employee for a GS-15
position. Contrary to Complainant’s allegation, the position was not newly created for the White
male selectee; rather, the selectee qualified for the position unlike Complainant, and the selection
process was open and competitive.

Lastly, the Agency’s Human Resource Specialist did not discriminate or retaliate against
Complainant when it reviewed her resume and determined that she lacked the minimum
qualifications for the GS-11/12/13/14 Highway Accident Investigator position. The job
announcement made clear what credentials were required to qualify for the position and
Complainant produced no evidence demonstrating that she met the requisite qualifications or that
the Agency’s reasons for her nonselection were a pretext for discrimination or reprisal.

Therefore, we find that Complainant has not shown by a preponderance of the evidence that she
was discriminated against in the instant complaint.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination or reprisal.

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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

July 3, 2018
Date