Ginger N.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Aug 16, 2016

0120140963 (E.E.O.C. Aug. 16, 2016)

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

Ginger N.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.

Appeal No. 0120140963

Hearing No. 510-2012-00370X

Agency No. YO-11-0024

DECISION

Complainant filed an appeal from the Agency’s final order dated November 25, 2013, finding
no discrimination with regard to her 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. For the following reasons, we AFFIRM the Agency’s final order finding no
discrimination.

BACKGROUND

In her complaint, dated July 12, 2011, Complainant alleged discrimination based on race
(African-American) and age (over 40) when on February 17, 2011, the Agency denied her the
opportunity to compete for promotion to the position of Supervisory Management Analyst
when the Agency reassigned her coworker to the position. Upon completion of the
investigation of the complaint, Complainant requested a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). On October 29, 2013, the AJ issued a

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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decision without holding a hearing, finding no discrimination. The Agency’s final order
implemented the AJ’s decision.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incident. During the relevant time period at issue, Complainant (born
in 1951) was employed as a Management Analyst, GS-12 at the Agency’s Aircraft Integrated
Maintenance Operations Center, Jacksonville, Florida. On February 17, 2011, Complainant’s
former supervisor (S1), Mission Support Team Leader/Supervisory Management Analyst, GS-
13 informed her that she was retiring on March 31, 2011, and an identified Contract Specialist
(CS), GS-13 (Caucasian, born in 1967) would be taking her position. Complainant claimed
that she had been in her position in the Mission Support Team for the past ten years and had a
Master’s Degree in Information Systems and Computer Resources whereas CS had been in her
GS-13 position less than six months.

The Agency Deputy Commander (DC) indicated that she decided to fill the S1’s position by a
lateral transfer, noncompetitively, because: S1 gave a short retirement notice; the position was
critical to the organization; and there was another GS-13, i.e., CS, who was available and
requested a transfer to that position. DC indicated that CS, GS-13 was an outstanding
performer and possessed the skills, background, and experience for the position at issue. Since
the position was filled via a lateral transfer, stated DC, Complainant’s qualifications were not
reviewed. DC indicated that lateral transfers were an option available to management to fill
vacancies and was not an uncommon practice at the Agency.

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A Supervisory Contracts Director stated that in the past, she was Complainant’s supervisor and
during the relevant time period at issue, DC asked her about her opinion about DC’s selecting
CS as a lateral candidate and CS’ ability to serve as a supervisor, as well as another lateral
candidate and Complainant. The Supervisory Contracts Director indicated that she
recommended CS as her first choice due to her leadership skills, interpersonal relationships
with her coworkers, management, and customers and her experience; the other lateral
candidate as her second choice; and Complainant as the third choice. The Supervisory
Contracts Director stated that she also told DC that she was not sure if Complainant would be
interested in the position at issue because on a few occasions, Complainant was frustrated with
her coworker and told her that she did not want to be a supervisor.

After a review of the record, we agree with the AJ that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for not assigning Complainant for the position
at issue, and instead filling the position through a lateral assignment. Furthermore, we find
that Complainant failed to show that there were any similarly situated employees not in her
protected groups who were treated differently under similar circumstances. Based on the
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination as she alleged.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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 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. The requests 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
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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 (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

August 16, 2016
Date