0120140397
06-29-2016
Gretchen M.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gretchen M.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120140397
Hearing No. 480-2012-00346X
Agency No. DON-40192-00682
DECISION
On November 6, 2013, Complainant filed an appeal from the Agency's November 4, 2014, final order 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence in the record supports the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision, after a hearing, that Complainant did not establish that the Agency subjected her to disparate treatment on the basis of sex (female) when it denied her tour extension request and provided a negative reference, resulting in the Department of Defense (DoD) retracting a tentative offer for a temporary duty assignment in Afghanistan with the Ministry of Defense Advisors (MoDA) Program.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an employee of the Department of the Army (Army) but, having accepted a two-year temporary duty assignment with the Agency in June 2009, was assigned to the Agency's Naval Facilities Engineering Command Marianas (NFECM) in Guam. Complainant's tour with the Agency was to end in June 2011, at which time she would return to the Army.
From June 2009 to September 2010, Complainant was assigned to the position of Facilities Management Director (FMD), GS-13, in the Public Works Division. When Complainant had applied to be assigned to the Agency, the Business Line Coordinator (BLC - male) was on the selection panel, reviewed her resume, recommended her for an interview, and recommended her for the FMD position. The Public Works Officer (PWO - male) supervised Complainant, as her second-level supervisor until mid-2010 and then as her first-level supervisor.
In August 2010, Complainant requested a reassignment away from her FMD position. PWO testified that Complainant told him she wanted to transfer because of a "broken working relationship" with her subordinates. Complainant, however, testified that she did not make the comment that PWO attributed to her. Based on Complainant's request, the Business Director (BD - male) asked BLC if he had an open billet for her. BLC responded that he did not have an open billet but, if he was allowed to create a billet, he could use Complainant in the Asset Management Division.
In September 2010, Complainant was reassigned to the position of Real Property Specialist (RPS), GS-13, in the Asset Management Division. The RPS position was not a vacant funded position, but was established to accommodate Complainant's August 2010 request for a reassignment away from her FMD position. According to BLC, the RPS position involved work that was at a lower grade level than Complainant's grade level in the FMD position. The Real Property Officer (RPO - male) was Complainant's first-level supervisor. BLC was Complainant's second-level supervisor. BD was Complainant's third-level supervisor.
In October 2010, PWO rated Complainant's performance for the appraisal period of May through September 2010 as "acceptable" on a rating scale of "acceptable" or "unacceptable." For the critical element "Continuous Process Improvement for Facilities Management," PWO wrote that Complainant's performance was "marginally successful." For the critical element "Lifecycle Management," PWO wrote that Complainant improved project prioritization with "much guidance." Regarding Complainant's performance, PWO testified that Complainant sometimes had trouble communicating his "tasking" to her subordinate employees, sustaining working relationships with her staff, and creating a quality work product in a timely fashion. PWO also testified that at least two members of Complainant's staff complained to him that she treated them disrespectfully or unprofessionally in staff meetings. PWO gave Complainant an award recommendation rating of "1," with "1" being the lowest award recommendation. When asked why he gave Complainant an award recommendation rating of "1" rather than no award recommendation at all, PWO testified, "To be honest, I could have been less favorable but I didn't. At that point, the last evaluation, she was already leaving my organization. I had a lot of respect for her as a single mom . . . I just didn't see any reason to give her a zero."
During Complainant's tour with the Agency, she applied for a one-year temporary duty assignment in Afghanistan with the DoD's MoDA Program. In the MoDA assignment, Complainant would serve as an advisor "to key counterparts within the Afghanistan's Ministries of Defense and Interior." The five core competencies that the MoDA Program looked for in an advisor were "relationship building, open communication, integrity, strategic alignment, and organizational savvy."
On November 8, 2010, the DoD gave Complainant a tentative offer for a temporary duty assignment under the MoDA Program with training scheduled for January 2011 and deployment to Afghanistan scheduled for March 2011. The offer was contingent on Complainant being able to meet all deployment requirements. On November 12, 2010, Human Resources informed Complainant that, in order to be eligible for deployment, Complainant needed a 15-month extension of her tour with the Agency.2
On November 16, 2010, BLC met with the Position Management Board (PMB) to discuss Complainant's tour extension request. The PMB, made up of BD and four other members
(3 male, 1 female), was responsible for ruling on tour extension requests at NFECM. According to BLC and BD, the PMB was unwilling to extend Complainant's tour because she was not serving in the position that she had been hired for (the FMD position) but was serving in a temporary position (the RPS position) that had been created for her and that involved work at a lower grade level. The PMB, however, was willing to allow Complainant to return early to the Army so that she could leave for the MoDA assignment from the Army. Later that day, BLC met with Complainant (and RPO) and informed her that PMB would not extend her tour.
According to Complainant, BLC and BD referenced her sex when discussing her tour extension request. Complainant testified that BLC made the following comments to her during their November 16, 2010, meeting: (1) "A woman like you can't handle it over there;" (2) "That's a lot of money for you. A woman like that, what are you going to do with your kids? If anybody should go there it should be me;" (3) "Women like you shouldn't even come to work, you have kids;" (4) "I'll make sure you never get ahead. Why should you make that kind of money?" and (5) he would "make sure" she would not go to Afghanistan through the MoDA Program. In addition, Complainant testified that when she asked RPO if he would give her an affidavit regarding what BLC said during their meeting, RPO refused and said, "I'm not going to put my job on the line for that. If I'm ever asked I'll say I don't remember." In her EEO intake statement,3 Complainant asserted that BD told her on one occasion that she did not have the "right focus" (referring to her family) and asked her who would care for her children. BLC, BD, and RPO, however, testified that they did not make the comments Complainant attributed to them. RPO also testified that BLC did not make the comments Complainant attributed to BLC.
On November 23, 2010, the MoDA Program Recruiting and Selection Lead (M1 - male) spoke on the phone with PWO and BLC about Complainant's suitability for the MoDA Program. According to M1 and the MoDA Program Director (M2 - female), they wanted to speak with Complainant's supervisors because they were concerned about the tone of some of her emails to management and others. Specifically, M1 and M2 found the tone of Complainant's emails to be "adversarial or confrontational" and therefore were concerned about her ability to maintain constructive working relationships and operate in a highly stressful environment such as Afghanistan. During the phone conversation, PWO spoke negatively about Complainant's ability to work independently, her ability to work with peers and supervisors, and her temperament and ability to work in stressful situations. After the phone conversation with PWO and BLC, M1 recommended that M2 retract Complainant's tentative offer. On December 10, 2010, M2 retracted Complainant's tentative offer.
EEO Complaint
Complainant filed an EEO complaint alleging that the Agency subjected her to disparate treatment on the basis of sex (female) when it denied her tour extension request and provided a negative reference, resulting in the DoD retracting the tentative offer for a temporary duty assignment in Afghanistan with the MoDA Program.4
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 AJ. Complainant timely requested a hearing. The AJ held a video-conferenced hearing on July 11, July 16, and August 1, 2013.5
On September 25, 2013, the AJ issued a decision concluding that Complainant did not establish that the Agency subjected her to disparate treatment on the basis of sex.
Regarding the PMB denying the tour extension request, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, Complainant was not serving in the position that she had been hired for (the FMD position) but was serving in a temporary position (the RPS position) that had been created for her and that involved work at a lower grade level. Moreover, the AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was a pretext for sex discrimination. First, the AJ found that Complainant did not show that the Agency's reasons were false. Second, the AJ found that BD, BLC, and RPO did not make the comments Complainant attributed to them. As to BD, the AJ found that he was "a very credible witness." As to BLC, the AJ found that his testifying demeanor on the matter was "sincere and believable" and "persuasive and convincing." The AJ also found that BLC's actions (recommending that she be selected for the FMD position and accepting her to work in his division even though he did not have an open billet) were evidence of a lack of discriminatory intent against Complainant based on her sex. As to RPO, the AJ found that he corroborated BLC's credible testimony. As to Complainant, the AJ found that she did not include most of BLC's alleged comments in her EEO intake statement.6 The AJ found that, considering the detail Complainant included in her EEO intake statement and the very derogatory nature of the alleged comments, it was not credible that if BLC had indeed made those comments that Complainant would not have included them in her EEO intake statement. The AJ found that Complainant's omission was significant and detracted from her credibility on the matter. Third, the AJ found that Complainant did not show that the PMB approved any male employee's tour extension request under similar circumstances. Fourth, the AJ found that the PMB's willingness to assist Complainant in other ways, by allowing her to return early to the Army so that she could leave for the MoDA Program from the Army, tended to show that her sex was not a factor.
Regarding PWO providing the negative reference, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, the information he provided was an accurate assessment of Complainant's abilities and performance. Moreover, the AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was a pretext for sex discrimination. Specifically, the AJ found that PWO "credibly testified" that Complainant, in her FMD position, had performance issues.
Regarding the DoD retracting the tentative offer,7 the AJ found that the DoD articulated a legitimate, nondiscriminatory reason for its actions; namely, in addition to the negative reference, M1 and M2 were concerned about the tone and content of Complainant's emails, and what they indicated about her communication skills, her ability to maintain effective working relationships with others, and her suitability for the MoDA Program. Moreover, the AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was a pretext for sex discrimination. Specifically, the AJ found it noteworthy that M1 and M2, a male and a female, had the same concerns based on Complainant's emails.
The Agency subsequently issued a final order fully implementing the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in finding that she did not prove pretext. Specifically, Complainant reiterates that BLC made the comments she attributed to him and that his testimony was not credible because he testified that he had no association with the government after his retirement even though he worked as a contractor for the government. In addition, Complainant asserts that PWO's testimony about her poor performance was not credible because he never made her aware of any performance issues. Further, Complainant asserts that PWO's testimony about why he recommended her for an award, which referenced her status as a single mom, was an admission to discrimination. Finally, Complainant asserts that the DoD's concern about her suitability for the MoDA Program was not credible because she went to Afghanistan in October 2013 on a one-year temporary duty assignment.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, at 9-17 (Aug. 5, 2015).
On appeal to the Commission, the burden is squarely on the party challenging the AJ's decision to demonstrate that the AJ's factual determinations are not supported by substantial evidence. See id. at 9-18. In this case, this means that Complainant has the burden of pointing out where and why the AJ's findings are not supported by substantial evidence. Cf. id. (pointing out that "[t]he appeals statements of the parties, both supporting and opposing the [AJ's] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ's] factual determinations are supported by substantial evidence").
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing 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. Co. 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, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that substantial evidence in the record supports the AJ's finding that Complainant did not establish that the Agency subjected her to disparate treatment on the basis of sex. Specifically, we agree with the AJ that Complainant did not prove, by a preponderance of the evidence, that the Agency's reasons for its actions were a pretext for sex discrimination.
Regarding BLC, we emphasize that the AJ made a credibility determination, based on his demeanor ("sincere and believable" and "persuasive and convincing"), that he did not make the comments Complainant attributed to him. We accept the AJ's credibility determination because Complainant did not point to any objective evidence that contradicts BLC's testimony and BLC's testimony does not so lack in credibility that a reasonable fact finder would not credit it. Although Complainant attempts to attack BLC's credibility by asserting that he testified he had no association with the government after his retirement even though he worked as a contractor for the government, we find that she misconstrues his testimony. BLC did not testify that he had no association with the government after his retirement; instead, BLC testified that he was not employed by any entity of the government. Hearing Transcript (Hr'g Tr.), at 122-23. We note that BLC's testimony is consistent with his statement in his affidavit that he was a contract employee. ROI, at 1176.
Regarding PWO, we emphasize that the AJ made a credibility determination, after observing and listening to him testify ("credibly testified"), that Complainant had performance issues in her FMD position. We accept the AJ's credibility determination because Complainant did not point to any objective evidence that contradicts PWO's testimony and PWO's testimony does not so lack in credibility that a reasonable fact finder would not credit it. Although Complainant attempts to attack PWO's credibility by asserting that he never made her aware of any performance issues, we note that some of his comments ("marginally successful" and "much guidance") in her performance appraisal reflect his ambivalence about her performance. Although PWO referenced Complainant's status as a single mom in his testimony about why he recommended her for an award ("To be honest, I could have been less favorable but I didn't. At that point, the last evaluation, she was already leaving my organization. I had a lot of respect for her as a single mom . . . I just didn't see any reason to give her a zero"), we find that his testimony, in this particular context, is not evidence that he viewed her or treated her less favorably because of her sex.
Regarding the DoD, we find that the decision by unspecified individuals, in or around October 2013, to send Complainant to Afghanistan in an unspecified temporary duty assignment does not contradict the testimony of M1 and M2 that, in November 2010, they were concerned about her suitability for a temporary duty assignment in Afghanistan with the MoDA Program.
CONCLUSION
Substantial evidence in the record supports the AJ's decision, after a hearing, that Complainant did not establish that the Agency subjected her to disparate treatment on the basis of sex (female) when it denied her tour extension request and provided a negative reference, resulting in the DoD retracting a tentative offer for a temporary duty assignment in Afghanistan with the MoDA Program. Therefore, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order finding no sex discrimination.
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 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
__6/29/16________________
Date
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.
2 Human Resources advised Complainant that NFECM needed to extend her tour in advance of deployment so that she would return to her current position of record in Guam at least six months before the end of her Guam tour. Because Complainant's tour was set to end in June 2011, and she needed to have six months remaining on her tour once she returned to Guam in March 2012 from her one-year temporary duty assignment in Afghanistan, she needed to extend her tour until September 2012.
3 The AJ noted that Complainant did not testify at the hearing about BD's comments.
4 The AJ found that the DoD was not a party to the complaint because Complainant filed her complaint against the Agency and not the DoD, and did not thereafter seek to add the DoD as a responding party.
5 In Allen v. U.S. Postal Serv., EEOC Appeal No. 01A51259 (Aug. 21, 2006), the Commission approved video-conferencing as an acceptable alternative to an in-person hearing. The record does not show that either during the hearing or thereafter, there was any objection raised to the video-conferencing.
6 The AJ noted that Complainant did not provide an affidavit to the EEO Investigator.
7 Although the AJ found that the DoD was not a party to Complainant's complaint, the AJ still analyzed the DoD's actions.
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