Erin O.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

May 16, 2018

0120162128 (E.E.O.C. May. 16, 2018)

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

Erin O.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.

Appeal No. 0120162128

Hearing No. 480-2014-00632X

Agency No. DMCA-P8-14-0007

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the May 19, 2016 final agency decision (FAD) 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 FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Electronics
Engineer, GS-0855-12, in the Systems Engineering Section of the Engineering and
Manufacturing Group at the Western Regional Command in Los Angeles, California. On
September 6, 2013, Complainant’s second-level supervisor (S2) sent an email soliciting
volunteers for reassignment into a GS-0801-13 Software Team Supervisor position.
Complainant claimed that she had previously expressed an interest in becoming a Software Team
Supervisor in a conversation with S2. Complainant, however, was not solicited or considered for

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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the position because she was not eligible for reassignment into a GS-13 position while at the GS-
12 level. As a result, Complainant was not selected for the reassignment. S2 ultimately selected
Selectee-1 from the list of eligible GS-13 employees.

On September 24, 2013, the Agency posted Job Announcement No. SWH813P8707139965403
for a GS-0801-13 Supervisory General Engineer position with a duty location at Port Hueneme,
California. Complainant did not apply for the position because of the advertised duty location.
Complainant believed that S2 falsified the duty location to eliminate her from consideration. S2
ultimately selected Selectee-2.

On December 17, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race (Asian), national origin (Vietnamese), sex
(female), color (yellow), age (57), and in reprisal for prior protected EEO activity when:

1. On October 23, 2013, she became aware that she had not been selected for
reassignment to the Software Team Supervisor position; and

2. On November 6, 2013, she became aware that she had not been selected for the
Supervisory General Engineer position announced under Job Announcement No.
SWH813P8707139965403.

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, but subsequently withdrew
her request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management had articulated legitimate,
nondiscriminatory reasons for its actions. More specifically, as to claim (1), S2 affirmed that the
Software Team Supervisor position became vacant when the supervisor retired. S2 stated that
due to a decrease in workload for existing GS-13 employees within the group, management
decided to reassign one of the existing GS-13s into the vacancy. S2 stressed that Complainant
was not considered for reassignment because she was not at the GS-13 level. Moreover, S2
explained it was not a promotion opportunity and that due to the decreased workload for existing
GS-13s, the position could not have been restructured to be a career ladder position for GS-12
employees. S2 asserted that to be reassigned to a GS-13 position, an employee would need to be
an existing GS-13 under human resources regulations. The Human Resources
Classification/Recruitment & Placement Specialist confirmed that a GS-12 employee cannot be
reassigned to a GS-13 position unless the employee previously held a GS-13 position.

With regard to claim (2), S2 denied falsifying the job announcement’s duty location and stated
that since at least 2010, the duty location for this position has always been Port Hueneme. As to
Complainant’s claim that Selectee-2 was not required to report to Port Hueneme, S2 explained
that she requested that Selectee-2 serve dual roles following his selection: continuing as a GS-
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0801-12, Engineer performing surveillance duties at the Northrop Grumman Carson office until
the project was over, while also performing the duties of a GS-0801-13 supervisor. S2 affirmed
that they worked out a system where Selectee-2 worked out of the Carson office a few days a
week, and then out of the Port Hueneme and/or North Hills office and teleworked.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to discrimination or reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Software Team Supervisor position should have been
advertised for all qualified candidates. Complainant notes that two other GS-12 employees
indicated interest in the position, but were not selected. Complainant claims that Selectee-1 was
not qualified for the GS-13 position he held and instead should have been reassigned to another
location, downgraded, dismissed, or laid off. Complainant argues that other engineers were
more qualified than Selectee-2. Finally, Complainant contends that the AJ did not have her
interests in mind and “rushed” her case along. Accordingly, Complainant requests that the
Commission reverse the FAD.

ANALYSIS AND FINDINGS

The Commission shall first address Complainant’s contentions on appeal regarding the manner
in which the AJ conducted the hearing phase. Complainant claimed that she felt the AJ rushed
her case and did not have her “interest at heart.” The Commission notes that AJs have broad
discretion in the conduct of hearings, including discovery and the determination of whether to
admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. § 1614.109(e);
Equal Employment Opportunity Commission Management Directive 110 for 29 C.F.R. Part
1614 (EEO MD-110), at Ch. 7 (Aug. 5, 2015). The Commission has reviewed the record and
finds no abuse of discretion by the AJ. Further, the Commission is unable to find any evidence
of bias, or other reversible error, resulting from the manner in which the AJ managed this case.

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).
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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, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. In particular, as to claim (1), S2 affirmed that the
Software Team Supervisor position was a reassignment opportunity announced to qualified
candidates on September 6, 2013. ROI, at 545. S2 added that the position became vacant due to
the incumbent retiring. Id. at 546. S2 confirmed that management decided to reassign one of the
existing GS-13s to the position due to the decrease in workload to support the existing
employees within the group. Id. S2 stated that Complainant did not qualify and was not
considered for the position because she was not at the GS-13 level and human resources
regulations would not allow her to be promoted into the position without opening the position to
the normal competitive process. Id. The Human Resources Specialist confirmed that
Complainant would have had to go through the competitive process to be promoted into a GS-13
position. Id. at 561.

Regarding claim (2), Complainant admitted that she did not apply for the position at issue. ROI,
at 379. Nonetheless, Complainant claimed that S2 falsified the duty location for the position to
eliminate her and other qualified candidates who live further away from Port Hueneme. Id. S2
affirmed that this position was a temporary promotion until approximately May 2013. Id. at 551.
S2 stated that she selected Selectee-2 for the position, but negotiated for him to continue his
engineering surveillance duties at the Northrop Grumman Carson office in addition to the new
supervisory duties to allow continuous support to the Agency’s customers and adequate mission
coverage. Id. at 551. S2 confirmed that Selectee-2 split time between the Carson and Port
Hueneme and/or North Hills offices in addition to telework. Id. S2 denied falsifying the duty
location for the position and stressed that the position has always been located at Port Hueneme,
which did not prevent Complainant from applying. 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. at 256. The Commission
notes that in the absence of evidence of unlawful discrimination, the Commission will not second
guess the Agency’s assessment of the candidates' qualifications. Id. at 259.

As Complainant chose to withdraw her hearing request, the Commission does not have the
benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no persuasive evidence that Complainant’s protected classes were a factor in
any of the Agency’s actions. 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.
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Complainant failed to carry this burden. As a result, the Commission finds that Complainant has
not established that he 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 decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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).

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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

May 16, 2018
Date