Janee S.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionNov 7, 20180120171498 (E.E.O.C. Nov. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janee S.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120171498 Agency No. DON156312603374 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 14, 2017, final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as an Operations Test Specialist, 301, GS-12 at the Agency’s Naval Air Warfare Center Weapons Division in Point Mugu, California. On January 4, 2016, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on national origin (Hispanic) and sex (female). As summarized by the Agency, Complainant alleged that she was discriminated against when: a. on or about September 3, 2015, Complainant was informed by her immediate supervisor (“S1”) (Head, Sea Range Test Operations Branch) and her second level supervisor (“S2”) (Head, Sea Range Operations Division), that she was not selected for one of the five positions for Operations Test Specialist, GS-0301-13, within code 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. 0120171498 2 523M003, which Complainant believes was the culmination of management’s efforts to discriminate against her when: i. approximately “several years ago,” S2 denied Complainant’s request to observe work performed by a Program Manager in the Test Management Branch, the knowledge, skills and abilities gained by which may have prepared Complainant for a higher grade (GS-13) in the future. (No specific date identified). ii. S2 twice denied sponsoring Complainant’s participation in the Executive Leadership Development Program (“ELDP”), citing that Complainant’s involvement in the program was not “worth it” to the department. (No specific dates identified.) iii. S2 denied Complainant’s request for tuition assistance for all but one course in the completion of Complainant’s associate’s and bachelor’s degree. (No specific dates or date range identified.) iv. Approximately, “3 years ago,” S2 assigned Complainant less complex F35 “Category 1-2” project work rather than more complex “Category 3-5” tasking, which would have aided Complainant’s likelihood of promotion to a GS-13 position. (No specific date identified.) v. S1 failed to inform Complainant of the five (5) upcoming positions (claim “a” above) in a “timely manner” which prevented Complainant from requesting higher category tasking/operations than the F35 “Category 1-2” than Complainant was performing. (No specific date or date range identified.) b. on or about September 8, 2015, S2 told Complainant the names of the five selectees’ names for the Operations Test Specialist position (in claim “a”) and they were all male. Two selectees were partially trained by Complainant, and had only 2-5 years’ work experience, and a bachelor’s degree, albeit not in engineering. After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant requested that the Agency issue a final decision. On February 14, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant provides a general statement arguing that she was discriminated based on national origin and sex. 0120171498 3 ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim a, S2 (male, Irish/German) was the selecting official for the Operations Test Specialist positions vacancies. S2 explained that his selections were “mainly based on a unanimous recommendation from the interview panel.” S2 further explained that the interview panel included a human resources representative and an EEO representative who served as non- voting members. S2 stated that the candidates were asked the same interview questions and the panel submitted recommendations to S2 regarding the candidates’ responses. S2 further stated that the interview panel indicated that Complainant had not “adequately shown the ability to plan and conduct complex operations.” S1 (male, Caucasian, white) was one of the members on the interview panel. S1 explained that seven candidates were interviewed and ranked based on their resumes and answers to the same five interview questions. S1 further explained that Complainant did not thoroughly explain her experience during her interview and “constantly quoted ‘You know what I do’” and lacked confidence during her interview. S1 stated that Complainant ranked 6th out of the 7 candidates. Interview panel member (“PM1”) (male, United States) explained that Complainant’s experience was “limited to routine or low complexity events.” PM1 further explained that Complainant did not “convey her ability to support complex events in her interview,” she did not interview well, 0120171498 4 and she was ranked second to last. PM1 stated that Complainant did not mention prior work experiences indicating that she had conducted complex tasks. Interview panel member (“PM2”) (female, English/Western European/Anglo) explained that Complainant stated during the interview that she “preferred routine operations, not involving a lot of complexity.” PM2 further explained that the programs Complainant mentioned she completed were not considered complex. Interview panel member (“PM3”) (male, Caucasian) stated that Complainant mentioned during her interview completion some successful projects. However, these projects did not indicate the knowledge, skill, or ability required for the position. Interview panel member (“PM4”) (male, United States) stated that Complainant did not demonstrate in her interview, resume, or work experience that she had the qualifications required for the position vacancy. The Human Resources representative (“HR”) (female, American) explained that she reviewed all interview questions and the candidates were provided the same questions and allotted the same amount of time to answer each question. The record includes a copy of the interview schedule indicating that Complainant2 and six other candidates were interviewed. The record also contains copies of the interview panel members’ notes taken during Complainant’s interview. The notes indicate that Complainant stated that she “likes consistency” in job duties and Complainant described solutions to instances where she “forgot to schedule” an asset and when she “allowed a ship to get away from her.” The record contains a copy of the Flight Test Specialist vacancy announcement as well as the position description indicating that performing and developing complex planning, scenarios, and events were essential skills required for the position. Regarding claim a(i), S2 stated that he did not recall denying Complainant the opportunity to shadow a Program Manager. However, S2 explained that this request would have been “difficult to accommodate” because it would have removed Complainant from her assigned duties. S2 further explained that it would not have been appropriate for him to discuss this matter with Complainant given that he was Complainant’s second-line, not first-line, supervisor. S2 also stated that Complainant’s experience observing a Program Manager would not have made Complainant better qualified for the Operations Test Specialist positions because these positions are classified differently. Regarding claim a(ii), S2 stated that he has no knowledge of Complainant applying for this program. S2 further stated that he would have remembered if Complainant had applied because the program has a “significant application process.” 2 The list contains a different last name for Complainant. 0120171498 5 The record includes a copy of a completed ELDP application. However, the application is not signed by Complainant and there is no indication on the application when this document was completed or when it was allegedly presented to management. Regarding claim a(iii), S2 stated that Complainant’s requests for tuition assistance were denied because there no additional funds in the budget to Complainant’s external educational requests. S2 explained, that most funding is used to provide employees with required training to perform their jobs. S2 further explained that he had “under-executed funds” one year and could provide Complainant tuition assistance that year. Regarding claim a(iv), S1 stated that Complainant has “shown very little initiative to want to advance in the more detailed work and seemed very content in doing the F-35” work. S1 further stated that other employees who performed non-complex work were also willing to perform more detailed operations. Regarding claim a(v), S1 stated that all employees were provided three months advanced notice of the GS-13 position vacancy. S1 further explained that he made the June 2015 announcement during a section meeting at the direction of management. Regarding claim b, S1 stated that the selectees had received training and had a formal Certificate in the Operations Test Conductor field. S1 further stated that none of the employees have an engineering degree and this degree was not a requirement for the GS-13 position. S1 explained that the interview panel selected two candidates (“SE1” and “SE2”) who had been trained by Complainant. S1 stated that SE1’s prior work experience and wiliness to participate in complex operations resulted in his selection. S1 clarified that SE2 impressed the interview panel with his knowledge and experience, but the selectee’s offer was rescinded because he did not meet the time-in-grade requirements. S2 explained that while SE1 and SE2 had fewer years of experience than Complainant, S2 stated that SE1 and SE2 had “substantial directly related work experience outside of the [Agency].” Specifically, S2 explained that SE1 had over 25 years of directly related experience as a certified Air Traffic Controller and SE2 had extensive military experience as an Operations Specialist and Air Inceptor controller. The record includes copies of resumes for SE1 and SE2. The resumes indicate that SE1 had prior experience as a certified Air Traffic Controller, and SE2 had prior experience as a Specialist and Air Inceptor controller, respectively. The record also includes a letter, dated September 16, 2015, indicating that SE2’s employment offer was rescinded after human resources determined that SE2 had not met the time-in-grade requirements and was mistakenly placed on the candidate certification list. 0120171498 6 After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on her national origin and sex. Accordingly, we 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. 0120171498 7 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 November 7, 2018 Date Copy with citationCopy as parenthetical citation