Erin O.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Management Agency), Agency.Download PDFEqual Employment Opportunity CommissionMay 16, 20180120162128 (E.E.O.C. May. 16, 2018) Copy Citation 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. 0120162128 2 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- 0120162128 3 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). 0120162128 4 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. 0120162128 5 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). 0120162128 6 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 Copy with citationCopy as parenthetical citation