Complainant,v.Thomas E. Perez, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Feb 12, 2015

0120133375 (E.E.O.C. Feb. 12, 2015)

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

,
Complainant,

v.

Thomas E. Perez,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120133375

Hearing No. 420-2012-00202X

Agency No. CRC-12-04-031

DECISION
On September 16, 2013, Complainant filed an appeal from the Agency’s July 26, 2013, final
action 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 action.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-7 Wage and
Hour Investigator in the Agency’s Jackson, Mississippi Area Office. During the relevant time,
Person A was the Assistant District Director of the Jackson Area Office and Complainant’s
immediate supervisor. Person B was the former District Director for the Jackson Area Office

Complainant filed an EEO complaint dated December 11, 2011, alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), and in reprisal
for prior protected EEO activity when:

Complainant did not receive a career ladder promotion from GS-7 to GS-9 that was due
on July 4, 2011.

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. The AJ assigned to the
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case determined sua sponte that the complaint did not warrant a hearing and issued a decision
without a hearing on April 3, 2013.

The AJ found the record revealed Complainant was eligible for a career ladder promotion to a
GS-09 because she successfully met the 52 weeks at the next lower grade, GS-07. The AJ
noted that on August 4, 2011, Person A recommended to the Deputy Regional Administrator
(Person C) that Complainant be promoted to the GS-09 level based on her performance. The
AJ noted that Person C concurred with this recommendation on September 15, 2011.

The AJ found that the Administrative Officer for the Southeastern Region of the Wage and
Hour Division (Person D) was responsible for all personnel issues for the Southeastern
Regional Office. The AJ noted that Person D advised Complainant that OASAM-HR (Office
of the Assistant Secretary for Administration and Management-Human Resources) had been
negligent in processing Complainant’s initial personnel action to reassign Complainant to an
investigator job classification from a previous vacancy announcement. The AJ noted that
Person D advised Complainant that she was working to get Complainant’s re-classification
completed and that Complainant’s promotion could not be processed until that occurred. The
AJ determined the record revealed that subsequently Complainant’s career ladder promotion
was effectuated with retroactive promotion earnings.

The AJ determined that even if Complainant established a prima facie case of sex, race, or
reprisal discrimination, Complainant could not show that the Agency’s reasons for the delay in
her career ladder promotion was a pretext for race, sex, or reprisal discrimination.

The Agency subsequently issued its final action on July 26, 2013. The Agency’s final action
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
her to discrimination as alleged.

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”).
In the present case, the Commission determines that there are no genuine issues of material
fact or any credibility issues which required a hearing. Moreover, we find the record in the
present case was fully developed. Under these circumstances, the Commission finds that the
AJ's issuance of a decision without a hearing was appropriate.
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To prevail in a discrimination claim of disparate treatment without direct evidence of
discriminatory intent, Complainant must satisfy the three-part evidentiary scheme fashioned by
the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the
Complainant must make a prima facie claim of discrimination showing complainant was: (1) a
member of a protected class; (2) subject to an adverse employment action concerning a term,
condition, or privilege of employment; and (3) treated differently than similarly situated
employees outside his protected class. See e.g. Complainant v. Dep’t of the Treasury, EEOC
Appeal No. 0120120091 (May 3, 2014), Walker v. U.S. Postal Serv., EEOC Appeal No.
01A14419 (Mar. 13, 2003), Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept.
26, 2002). Upon making a prima facie showing, the burden then shifts to the Agency to show
that it had a legitimate, nondiscriminatory reason for the employment action. See Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 252 (1981). Finally, the burden shifts back to the
Complainant who bears the ultimate burden of proving that the nondiscriminatory reason
articulated by the Agency was in fact pretext for discrimination. See id.

at 253-4.
Assuming arguendo that Complainant established a prima facie claim on all bases, we find the
Agency articulated a legitimate, nondiscriminatory reason for the delay of Complainant’s
career ladder promotion. The Agency noted that Complainant’s career ladder promotion was
delayed because OASAM-HR failed to process Complainant’s initial promotion to a GS-07
Wage and Hour Investigator, and until that promotion was processed, Complainant’s
subsequent career ladder promotion to a GS-09 Wage and Hour Investigator could not be
processed. Upon review, we find Complainant failed to show the Agency’s actions were a
pretext for discrimination. Moreover, we find the AJ’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does not establish that
discrimination occurred.

CONCLUSION
Accordingly, the Agency’s final action finding no discrimination is AFFIRMED.

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.

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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
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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

Date
February 12, 2015