0120161926
09-07-2016
Lia M.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lia M.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120161926
Agency No. DLAN-15-0210
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 17, 2016 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Human Resources Specialist (Human Resource Development), GS-0201-13, at the Agency's Human Resources Service, Human Capitol Business Integration in New Cumberland, Pennsylvania.
On August 4, 2015, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her on the bases of sex (female), age (over 40), and in reprisal for prior EEO activity when:
on April 30, 2015, she became aware that she was not selected for the position of Supervisory Human Resources Specialist, GS-0201-14, recruited under Job Opportunity No. DLAHRScvsN-15-1376811-MP.
After the investigation of the claim, 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 (AJ). In accordance with Complainant's request, the Agency issued a final decision on August 17, 2016, pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency dismissed parental status as a basis. Specifically, the Agency stated that parental status is not a covered basis of discrimination under the EEO regulations.2
The Agency then proceeded to address the complaint on the merits on the remaining bases, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of sex, age and reprisal discrimination. The Agency further found that assuming Complainant established a prima facie case of sex, age and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for the non-selection which Complainant failed to show were a pretext.
The instant appeal followed. Complainant submitted no argument on appeal.
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, he 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. Complainant alleged that she has been Human Resources Specialist since November 2008, at the Agency's Defense Logistics Agency (DLA) in New Cumberland, Pennsylvania. In her formal complaint, Complainant alleged the selectee was chosen for the position of Supervisory Human Resources Specialist because he was non-competitively placed in the newly created Deputy Customer Account Manager (CAM), GS-201-14 position in January 2014 and "has been groomed to replace [female employee] (current CAM), after her retirement in 2015/2016."
The vacancy announcement for the Supervisory Human Resources Specialist was posted through USA Jobs website and stated that applications would be accepted only from current permanent civilian DLA Human Resources employees at the Agency's New Cumberland, Pennsylvania Defense Human Resources Services (DHRS) facility.
The record reflects that three candidates, including Complainant, were referred for consideration for the subject position. The Deputy Human Resources Management Officer, the recommending official, returned the Certificate of Eligible Candidates identifying the selectee as the selected candidate for the subject position. In her affidavit, the recommending official acknowledged that Complainant was referred for the subject position in error. Specifically, the recommending official stated that Agency management "got two names that we could consider. They were both internal candidates to DHRS. [Complainant] was referred for that vacancy in error. She should not have been referred because she was not - it was announced to employees in DHRS at New Cumberland only and [Complainant] does not work for DHRS. She works for JI Headquarters. She's assigned to New Cumberland, but she's not part of DHRS. So she should not have been referred."
The recommending official stated that she selected the selectee for the subject position because he was best qualified. Moreover, the recommending official stated that Complainant's sex, age and prior protected activity were not factors in her decision to select the selectee for the subject position.
The Director, DLA Human Resources Enterprise Operations Office stated that he was the concurring official for the subject position. The Director stated that although Complainant's name was on the Certificate of Eligible Candidates, it was done in error because Complainant worked in Headquarters and was not employed by DHRS. The Director further stated that the area of consideration for the subject position was limited to qualified individuals employed by DHRS. Furthermore, the Director stated that Complainant's qualifications lacked sufficient experience with the staffing function but that even if her staffing experience exceeded that of the selectee, she could not have been selected.
Moreover, the Director stated that he did not discriminate against Complainant based on her sex, age and prior protected activity.
The Human Resources Management Program Administrator (Administrator) stated that she approved the recommendation that the selectee be selected for the subject position. The Administrator stated that Complainant was placed on the Certificate of Eligible Candidates in error because she was not employed by DHRS. The Administrator stated "in a normal merit promotion process you have a vacancy. You announce it to whatever your area of consideration is. And that determination on the area of consideration - the area is based on a wide enough area that you would get a sufficient pool of candidates to make a selection. In a planned management action, you don't have a vacancy and it's announced in the organization where you have the work. You're basically adding some duties to another position. So, you don't have a vacancy."
Further, the Administrator stated that the area of consideration "is for the organization where the position is being filled and people within that organization can compete. [Complainant] was not in the area of consideration. It was not picked up on until later, not until after she was interviewed that she really shouldn't have even been considered."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements 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 (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
September 7, 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 We note that the basis of parental status is not under the Commission's jurisdiction. Brockman v. Department of the Treasury, EEOC Appeal No. 01A54566 (September 22, 2005).
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