0120141957
10-19-2016
Jade R.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jade R.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120141957
Hearing No. 570-2013-00513X
Agency No. DIA-2012-00077
DECISION
On May 5, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 28, 2014, 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Staff Officer, 0301, Pay Band 3/GG-11, at the Agency's Solution Integrations Office (DSB) for the Directorate of Information Management and Chief Information Officer (DS) in College Park, Maryland.
On September 21, 2012, Complainant filed an EEO complaint alleging, in relevant part, that the Agency subjected her to a hostile work environment based on her race (Pacific Islander) and sex (female) when:
1.
a. On March 18, 2011, her first line supervisor (S1 - Black male) requested that she sit outside his office, even though she was not his secretary;
b. On March 25, 2011, S1 told a contract co-worker of Complainant (CW1) to send an email to Complainant and "dumb it down" and "make it an email for dummies;"
c. On April 14, 2011, she told S1 that she was fully aware of the above negative comment and S1 replied she did not perceive it the way it was intended;
d. On August 8, 2011, S1 told her that if she did not complete and submit a Portfolio Management Team (PfMT) metric (meaning a checklist to follow when someone is substituting for Complainant), he would cancel her August 2011 SEARCHLIGHT training;
e. After 11/2 years of not receiving guidance or training to enhance her becoming a 2210 series (Information Technology (IT) Specialist), she was allowed to attend SEARCHLIGHT training in August 2011;
f. In August 2011, after she was handpicked by a Senior Executive Service (SES) manager to serve on the DS Strategic Implementation Team, S1 tried to deny her participation therein;
g. In September 2011, she asked the Deputy Chief of DSB (Caucasian male - Deputy to Complainant's third line supervisor) via email to be removed from
S1's supervision and he never responded;
h. In October 2011, she was converted from Pay Band 3 to a GG-11, instead of GG-13;
i. At the end of November 2011, she discovered that her appeal of her GG-11 conversion was denied. She also discovered that S1 informed headquarters that he did not have knowledge of her duties because he did not hire her;
j. In March 2012, she had a conversation with S1 and questioned him regarding the administrative tasks she had to complete (she was required to book conference rooms, video teleconferences (VTC) and retrieve mail). S1 replied "Well you are a 301 series, it's a big umbrella and it encompasses several duties." Another Staff Officer, CW2 (White female) was not forced to complete administrative duties;
k. In April 2012, S1 and Complainant's second line supervisor (S2 - White female) recommended her for a promotion to GG-12 under the Occupational Advancement Program (OAP), not GG-13;
l. On June 7, 2012, she inquired about OAP denying her a GS-12 promotion and was told it was denied by a third level review board. S1 told her that the review board denied her increase because she wrote more about her previous job in the Operations Group than about her current job. S1 stated "it wasn't us that denied it, it was the panel";2 and
m. On June 26, 2012, she attended a mandatory timekeeper meeting, but CW2 and CW3 (White female) did not attend, despite being timekeepers; and
2. She was discriminated against based on her race and sex when on June 7, 2012, she was informed that she was denied a promotion to a higher pay grade by OAP.3
After 180 days elapsed from the time she filed her EEO complaint, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Thereafter, the Agency completed the report of investigation and provided it to Complainant. Complainant subsequently withdrew her hearing request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). It found no discrimination.
Prior to the events that give rise to this complaint, Complainant worked in a different office - the Operations Group (OG). There, she was selected for the position of Staff Officer in January 2009.
After the Agency converted from Pay Bands to the GG pay scale, the Staff Officer position was at the GG-11 to the GG-13 pay level, meaning an incumbent could non-competitively be promoted between GG-11 to GG-13.
Around September 2009, DS started a Reinvention team in DSB, which was scheduled to last about two years. It took about six months to sort out the supervision therein, and changes were made in supervision. People were pulled from different locations to focus on making IT infrastructure more cost efficient and providing better quality service to customers. The Reinvention team took care of licensing, understanding how servers operate, and working with contract officers and contracting officer representatives. The team was split between a technical and contract side.
Complainant moved to the Reinvention team in December 2009. Initially, Lead 1 (African - American female) was Complainant's team lead. Lead 1 was an IT Specialist, GG-14, and her responsibility was on the technical side. At this time, S2 was Complainant's first line supervisor. Lead 1 stated that Complainant moved to the Reinvention team with the goal of transitioning from the 301 administrative series to the 2210 series, and this was explicitly understood by her, Complainant and S2. Complainant wrote that she was supposed to be transitioned. Lead 1 elaborated that there is much to overcome in making this transition, and to this end she advised Complainant to take specified training - she took three courses - mentored her, and suggested that she assigned or began to assign Complainant 2210 work. Lead 1 stated she was just getting started with these things when she moved off the Reinvention team (in February 2011). Lead 1 indicated that Complainant was not promised a grade level, but in her personal opinion she was performing and mastering the techniques, knowledge and skills to receive a GG-13, and was performing licensing work at that level.
S2 indicated that she did not promise a transition through a non-competitive conversion. According to the EEO counselor, S2 relayed that she would expose Complainant to 2210 work, and if she showed the right skills she would be competitive to apply for a job in the 2210 series. Report of Investigation (ROI), 41.4 S2 stated she indicated to Complainant that she was going to be stretched to learn the basics of 2210 vocabulary and jargon and engage with 2210s on work issues, and hoped this would give her enough experience to add things to her resume to compete for a 2210. ROI, 477 - 478. But S2 stated that Complainant was still in an administrative role. ROI, 432.
In February 2010, Lead 2 (White male) succeeded Lead 1. Complainant contended that Lead 2 did not give her proper guidance and training to help her transition to a 2210. S1 became Complainant's first line supervisor somewhere between June and October 2010, and at that point S2 became Complainant's second line supervisor.
While under Lead 2, Complainant became the Secretariat of the Portfolio Management Team (PfMT). PfMT met monthly to look at various IT programs to manage applications and make recommendations on what should be funded and cut. It was comprised of representatives from major directorates, and people outside the Agency from around the globe, and its monthly meetings were considered a big event. Prior to each meeting, there was much lead work which Complainant performed. As the Secretariat Complainant was responsible for finding a location for the meeting, setting up the video teleconference (VTC) communication, setting up the agenda, securing briefing slides from the speakers and providing materials to participants in advance of the meetings, keeping track of the attendance roster, and taking meeting minutes. The PfMT function moved from the Reinvention team around December 2011, but Complainant remained with the team. In May 2012, Complainant moved off the Reinvention team and was no longer supervised by S1 and S2.
Regarding incident 1.a., the record reflects that S1 and his group were physically relocating to another facility, and a facilities person asked S1 where he wanted his people to sit. All four moving subordinates were assigned to sit in cubicles in close proximity outside his office in a square configuration - two cubicles in the front, two in the back - all close to each other. ROI, 127 - 128. S1 told the facilities person that he wanted Complainant to sit in one of the front cubicles. He explained that he wanted to help train her on coming up to speed on PfMT, and she had an interest in learning to be an IT Specialist.5 S2 stated that S1 indicated Complainant needed a bit more oversight, and he wanted her to sit close to CW2, the other Staff Officer, so Complainant could overhear and perhaps pick up some slack during busier times. S1 also stated that he did not view Complainant as his secretary, and she was never given such assignments. Complainant never sat in one of the front cubicles - when she objected to proposed seating arrangement, she was placed in one of the back cubicles.
Regarding the dummy remark - incidents 1.b. and 1.c. - S1 said that he was talking about the topic, not Complainant. He explained that a PfMT participant asked to add a pressing complex agenda item passed the deadline, giving Complainant no time to collect information on it and dialogue with the participant so she could explain to S2 why the topic should be added. S1 stated that he asked CW1, one of the PfMT particpant's contract support staff members, to ensure that the proposed topic be written up in way that it could stand on its own - for dummies - to head off S2 from asking Complainant lots of questions and putting her on the spot to defend an agenda item she hadn't had a chance to see prior. S2 stated that S1 frequently used the term "dumb it down" when he wanted a technical issue to be explained in functional terms, and has heard him use it with Lead 2 (White male) and two co-workers of Complainant - an African-American male and a White female.
Regarding incident 1.d., S1 relayed to the EEO counselor that Complainant announced at a staff meeting that she would be out for three weeks because she signed up for training and was not sure what S1 was going to do with PfMT while she was out. S1's statement was consistent with this. S1 stated he privately met with Complainant and told her what she did was not professional, that she needed to complete the checklist to assist people covering her, and if she did not do so they would have to discuss postponing the training. S1 stated he asked Complainant to complete the checklist months before, and she was late in doing so. S1 stated Complainant completed the checklist. She went to the training. Complainant countered that she had someone to back her up who previously performed her PfMT function.
On incident 1.e., Complainant stated that in June 2010, she inquired with S1 and S2 about getting 2210 training, and inquired later with S1 a second time, but they did not provide guidance. ROI, 270 - 273. S1 countered that he sat down with Complainant and helped her pick courses from a college catalog. S2 stated there was quite a bit of discussion with Complainant on courses that would be good to take. Complainant conceded that S1 did look through a course catalog to try to find appropriate courses.
Regarding incident 1.f., S1 stated that he noticed Complainant was away from her desk for long periods so he asked where she was, and she replied that she was attending DS Strategic Implementation Team meetings. S1 stated he informed Complainant it was not professional for her to do so without notifying him or S2. S1 approached the DS Strategic Implementation Team lead, who said he developed the list of attendees and the SES manager approved it. S1 stated the team was DS wide, and he expressed concern to the lead that Complainant would be perceived as representing S1 and S2 without their knowing it, and they should decide who was representing them. Complainant countered that she was just sitting in on the meetings and not making decisions, and stated that she continued attending the meetings. ROI, 281.
On incident 1.g., Complainant stated that she asked the Deputy Chief of DSB to be removed from S1's supervision because he nitpicked the quality of her work. The Deputy Chief of DSB stated that he did not recall receiving an email from Complainant in September 2011 asking to be removed from S1's supervision. The record does not contain such an email. But he indicated that around March 2011 Complainant asked to be removed from S1's supervision and he spoke with S1 who said Complainant was not successfully completing what she was tasked to do and did not feel that moving her would solve anything. The Deputy Chief stated he did not have authority to take this action - his boss did.
S1 stated he had to give Complainant guidance on performing as the PfMT Secretariat - she was not grasping things at the GG-13 level. S1 stated one function of the Secretariat was recommend agenda topics to S2 but Complainant was not able to do so after talking to the participants and collecting their information. According to S1, Complainant tended to just take participants' word for it that something should be on the agenda, rather than digesting and comprehending things. S2 stated that as Secretariat, Complainant was frequently late on deadlines - such as the read only packages that needed to go out a week before the meeting. S2 also stated that Complainant's agenda document had quality problems - she was more compiling than crafting the agenda, and she did not independently create minutes from the meeting. Rather, according to S2, Complainant would go back to each speaker and ask them to write up their sections. S2 also stated that Complainant's minutes contained errors. She stated Complainant would always represent that the agenda and minutes as a draft and S1 and S2 had a lengthy discussion with her on improving the quality of the products she prepared. S2 stated that Complainant's skills wavered between the GG-11 to GG-12 level - when she was more focused she performed as a GG-12, but on a recurring basis she performed at the GG-11 level.
Regarding incident 1.h., personnel (Human Capital) made the decision to convert Complainant from Pay Band 3 to GG-11, instead of GG-13. ROI, 357, 395. S1 stated that his only input was advising that the full performance level of the position was GG-13. ROI, 396. Complainant believed that she should have been converted to GG-13 since her predecessor in the Operations Group was a GG-13 and based on her time in OG. ROI, 217.
Turning to incident 1.i., Complainant appealed her conversion to GG-11. On November 21, 2011, she received an email by the Human Capital Position Classification Branch denying the appeal. According to Complainant the Branch informed her that after extensive review by the Human Capital Position Classification Board and GGT Transition Board, as well as discussing it with her management, her appeal was denied. ROI, 217 - 218. S1 denied telling Human Capital that he did not know Complainant's duties (when she was a Staff Officer in OG). He stated that he received a telephone call from Human Capital trying to verify Complainant's grade and he responded that he was going by the records they created which showed she was a GG-11 or pay band comparable. S1 stated he told Human Capital he did not see the vacancy announcement under which Complainant selected as a Staffing Officer. ROI, 357 - 358, 398 - 399. The Classification Branch wrote in an internal appeals summary that an alignment spreadsheet indicated DS management agreed with Human Capital on aligning Complainant as a GG-11, and management was contacted regarding Complainant's grade level and stated their original assessment that she was performing at the GG-11 level and should be a GG-11. ROI, 138 - 139.
On incident 1.j., S1 stated that CW2 directly supported himself and S2, and performed what some might consider secretarial duties. S2 stated that CW2 managed her calendar, handled telephone calls, did timecards, and all correspondence. S2 related that CW2 also did travel orders, scheduled conference rooms, conducted security indoctrination of people coming into the facility, got packages mailed, and spent much time on a database dictionary for an application so it could interact with basic office software packages. Prior to March 2012, PfMT migrated out of the Reinvention team, but Complainant did not move. S1 indicated this left Complainant with a big deficit in her workload. ROI, 399 - 400. S1 and S2 indicated that CW2's workload was overwhelming and too large. ROI, 145 - 146, 401 - 402, 404, 437 - 438, 458. In a March 16, 2012, email, S1 assigned Complainant to provide support with laptop request forms, security and visitor access forms, mail distribution, and conference room reservations and supporting the conference room calendar. ROI, 146. S1 stated he did this to offset some of CW2's workload. S2 indicated the primary thing was scheduling conference rooms. ROI, 41, 437. S2 stated that CW2 continued to perform administrative duties, and S1 was simply asking Complainant to take on one or two of them because this was the only way to get the mission done with an expanding support workload. ROI, 487 - 488.
Complainant stated that while she (Complainant) was in Reinvention, the entire time CW2 actively performed her role of Staff Officer under the administrative series. ROI, 227. Complainant contended that for 21/2 years prior to March 2012, she hadn't performed 0301 duties and was doing 2210 work - her entire time on the Reinvention team. ROI, 241 - 242, 244, 296. S2 countered that Complainant basically performed an administrative role, but would get into the substance of 2210 activity allowing her to stretch her experience a little bit, and Complainant's PfMT Secretariat role was administrative. ROI, 432.
Referring to an email string with CW2, the Staff Director of the Enterprise Management Office, who was not in CW2's chain of command, stated that CW2 rebuffed her on scheduling conference rooms. Complainant stated that she was told by the Staff Director that CW2 refused to perform certain duties - conference room scheduling, video teleconferencing, and desktop video teleconference scheduling. Complainant suggested that she had to take over such duties because of CW2's refusal. A review of the above email string reveals that while CW2 was pushing back, at the same time she was attempting to clarify her role, and she copied S1 on her emails. ROI, 55 - 58. S1 related to the EEO counselor that CW2 has always done what is asked and is not insubordinate. ROI, 39 - 40. S2 stated that CW2 was a professional - she gives her a task, and she gets the job done with very little direction, and she never has to edit her work for grammar or spelling. In response to a question about the above Staff Director, S2 stated CW2 told her she was having some difficulty determining tasking and distribution of assignments with the Staff Director. S2 stated that CW2 met with S1 (and perhaps the Staff Director), and S1 was able to work out splitting up administrative duties among the various administrative people. ROI, 452 - 453.
Regarding incident 1.k., S1 and S2 recommended to OAP that Complainant be approved for a promotion to GG-12. They explained that as a GG-11, Complainant was not eligible for promotion to GG-13, and she was performing at a level where she could be promoted to GG-12 level, but not GG-13. ROI, 354 - 355, 358 - 359, 369, 446. S2 related to the EEO counselor that she did not think Complainant was ready to be a GG-12, but S1 defended the reasons Complainant should be a GG-12. ROI, 41. Around the same time, S1 and S2 recommended to OAP that CW2 be promoted from GG-12 to GG-13. ROI, 155 - 156. Complainant argued that she was treated differently because CW2 refused to perform certain duties and was still recommended for promotion to GG-13.
Regarding incident 1.l., the Deputy Chief of DSB S1 wrote to S1 that OAP denied Complainant's request for a promotion because her submission did not demonstrate the expected competencies at the next grade level, and also focused almost exclusively on a previous assignment rather than her efforts over the past year. ROI, 136 - 137. In her OAP request packet Complainant focused on her work in OG in setting forth work she considered to be at a higher level, and conceded doing this in her statement. ROI, 133, 300, 312. S2 stated that the OAP submittal package had instructions to focus heavily on what the applicant did in the last 12 months, and before the package was submitted S1 advised Complainant to change her package, and she declined to do so. ROI, 485 - 486. Complainant stated that under S1 and S2 she was not offered training - an apparent reference to 2210 training - and hence she had no choice but to write about her performance and duties in OG. ROI, 300, 311 - 312. Regarding her promotion being denied, Complainant averred that she was treated differently than CW2 since she refused to perform her duties and still got promoted.
When incident 1.m. occurred, Complainant was no longer under S1 and S2. Complainant stated that she did not know why CW2 and CW3 did not attend the mandatory timekeeper meeting, and believed Human Capital was responsible. ROI, 317. CW3 did not work for S1 or S2. S2 stated that CW2 had a scheduling conflict with a more important meeting, approached her, and she indicated it was okay not to go to the timekeeper meeting with the proviso that she check in with whoever was doing the timekeeper meeting to get the information. ROI, 492. S1 stated that CW2's practice was that if there was a scheduling conflict on a mission requirement, she will contact the person hosting the meeting, mention the conflict, and get information either before or after the meeting.
The factual information for issue 2 is the same as incident 1.l.
On issue 2, which regards OAP denying her a promotion, the Agency found in its FAD that Complainant was not similarly situated to her predecessor Staff Officer (White female) in OG because Complainant was under different supervision on the Reinvention team. The Agency found that Complainant presented no evidence that S1 and S2, who recommended that Complainant be advanced to the next grade of GG-12, were responsible for the OAP Board denying her promotion to GG-13. Regarding Complainant's comparative employee, CW2, the Agency found that like Complainant, S1 and S2 recommended her promotion to the next grade and they stated her job performance was superior to Complainant's.
Regarding issue 1, the Agency found that Complainant did not establish a prima facie case of hostile work environment discrimination. It found that even if she did, she failed to prove discrimination. In finding no discrimination on the harassment incidents which did not regard non-promotion (all incidents but 1.h., 1.i., 1.k. and 1.l.) the Agency recited the explanations of S1 and S2. On incident 1.g. the Agency noted Complainant did not submit the September 2011 email where she allegedly asked the Deputy Chief of DSB to remove her from the supervision of S1, and that Complainant did not show why such a request was justified.
On incident 1.h., Complainant's conversion to GG-11, the Agency found that S1 and S2 stated they were not involved with this. On incident 1.i., the Agency recited S1's statement. On incident's 1.k. and 1.l., relating to the OAP non-promotion matter, the Agency found that S1 and S2 recommended both Complainant and CW2 for a one grade increase, and instead of discussing her current experience, as required, Complainant discussed her past experience (in OG).
On appeal Complainant argues through her attorney that with respect to the pay system conversion and the OAP process she was disparately treated from CW2. She argues that in the OAP process, S1 and S2 enthusiastically supported CW2's request for promotion, while their support for Complainant was luke warm. A review of the record shows that the recommendations shows the ones for CW2 were more favorable than for Complainant. Complainant argues that the record does not show CW2's performance was superior to Complainant's. On the non-promotion harassment incidents, Complainant argues that she proved harassment through the statements of herself and CW1.
In opposition to the appeal, the Agency argues that the FAD should be affirmed.
ANALYSIS AND FINDINGS
To prevail on her disparate treatment claim - issue 2 - Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Complainant also alleges that she was subjected to harassment. To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. �1604.11.
Regarding the alleged incidents of harassment unrelated to not receiving a promotion, several were not harassing in nature - incident 1.a. - Complainant never sat in one of the cubicles closest to S1's office and does not allege S1 called her his secretary - incident 1.d. - S1's request that Complainant complete a PfMT Secretariat task checklist, which she was asked to do months before for people to use when covering her was reasonable and Complainant attended the SEARCHLIGHT training - incident 1.f. - S1 expressed a valid concern that Complainant could be viewed as representing S1 and S2 without their knowledge and Complainant stated she continued to attend the DS Strategic Implementation Team meetings - and incident 1.m. - attending a mandatory timekeeper meeting at the behest of Human Capital.
On incidents 1.b. and 1.c., S1 and S2 persuasively explained that S1 was not calling anyone dumb when he made the dumb and dummies remarks - he was asking that a beyond the deadline proposed topic agenda item be presented in an understandable fashion. On incident 1.e., the record reflects that S1 gave Complainant guidance and training by helping her identify courses useful for the 2210 series out of a college catalog. On incident 1.j., S1 and S2 persuasively explained that Complainant was assigned some of CW2's administrative duties because CW2's workload was too large and the workload needed to be better balanced to get the mission done. CW2 continued to perform other administrative work. With the migration of the PfMT Secretariat role out of the Reinvention team, Complainant had a deficit in her workload. Complainant's contention that she had been performing 2210 duties all along, and administrative work was suddenly foisted upon her was rebutted by S2 - Complainant had been performing administrative work with 2210 exposure. Further, Complainant was in the 0301 Administrative Officer series.
On incident 1.g., the Deputy Chief of DSB did not recall receiving an email from Complainant in September 2011 asking to be removed from S1's supervision. Complainant has failed to show the Deputy Chief did not respond based on her protected bases. First, when Complainant previously made the same request to the Deputy Chief, he reacted - he looked into the matter. Further, Complainant has not shown that she should have been reassigned because S1 nitpicked her work. S1 and S2 persuasively identified deficiencies in Complainant's work performance.
We now turn to the incidents related to Complainant not being promoted. Regarding incidents 1.h. and 1.i. - her conversion from Pay Band 3 to GG-11, and her appeal thereof, the decision was made by Human Capital, and its Classification Branch determined this was the correct grade level. Complainant has not identified anyone in Human Capital who she believed wanted to harass her. Complainant contended that she should have been converted to GG-13 because her predecessor in OG was a GG-13. But the pay for the Staff Officer position ranged from GG-11 to GG-13, depending on performance level. Further, to the extent management had input in Complainant being converted to a GG-11, she has not shown that they did not believe at the time she was performing at the GG-11 level.
Regarding incident 1.k., S1 and S2 persuasively stated that they recommended to OAP that Complainant be promoted to GG-12, rather than GG-13, because they believed as a GG-11 Complainant was not eligible for a GG-13, and she was not performing at the GG-13 level. Further, S1 and S2 did not believe that CW2, a GG-12 at the time who they recommended for GG-13, refused to perform certain duties.
Regarding incident 1.l., the Agency explained that OAP denied Complainant's request for a promotion because in her submission thereto she did not demonstrate the expected competencies at the next grade level and focused almost exclusively on her previous assignment (in OG) rather than her efforts over the past year. Complainant countered that under S1 and S2 she was not offered training - an apparent reference to 2210 training - and hence had no choice but to write about her performance and duties in OG. This is not persuasive - Complainant was asked to write about her work, not training.
Complainant failed to prove disparate treatment discrimination regarding issue 2 for the same reasons recounted above with incident 1.l.
The FAD 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 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
October 19, 2016
__________________
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 While the Agency accepted the non-promotion incidents in 1.h. and 1.i as part of Complainant's hostile work environment claim, it dismissed them as independently actionable claims. Also, during the investigation, Complainant withdrew a hostile work environment incident that occurred a "few days after March 25, 2011." Report of Investigation (ROI), at 258.
3 We have only listed the claims that the Agency accepted for investigation. Complainant does not appeal the Agency's procedural dismissal of some of her claims.
4 S2 perceived Complainant as being Hispanic. ROI, 451.
5 S1 perceived Complainant as being African- American. ROI, 347.
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