Lyman D.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionOct 3, 20180120171124 (E.E.O.C. Oct. 3, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lyman D.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120171124 Agency No. AREURHPFZ16MAR00944 DECISION On January 20, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 8, 2016 final decision concerning his 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, NF-1102-04, with the Agency’s NAF Contracting Europe at the Agency’s work facility in Kaiserlautern, Germany. On April 20, 2016, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him on the basis of his race (African-American) when: 1. In July 2015, Complainant was informed by the Supervisory Contract Specialist that he was authorized living quarters allowance (LQA) for a Command decision transfer from Stuttgart to Kaiserlautern, Germany. 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. 0120171124 2 2. On an unspecified date in 2016, Complainant was informed by the Acting Chief, NC Europe Region, NAF Army Contracting, that it was a management decision not to approve LQA for him. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that Complainant failed to prove that it subjected him to discrimination as alleged. The Agency stated that in an undated memorandum, Complainant was notified that due to restructuring and realignment, his position would be transferred to the Region Support Office, USAG, Rheinland-Pfalz, Kaiserlautern, Germany, effective September 30, 2015. The memorandum provided that should Complainant accept the transfer, the Agency would incur the cost of his permanent change of station, and that should he decline the transfer, he would be separated by Business Based Separation on September 30, 2015. Complainant accepted the transfer of function and indicated he would be ready to move by September 30, 2015. The Agency noted that in an email dated June 25, 2015, the Recreation Program Manager, NF- 0301-05, HQ, IMCOM G9 Recreation Branch, informed Complainant that it appeared to him the authorization was there for him to receive LQA. The Agency stated in an email dated November 12, 2015, Complainant informed the Supervisory Contract Specialist that he reviewed the regulation and contacted IMCOM Region G9 Headquarters and was told that several IMCOM employees received LQA. The Agency noted that in February 2016, Complainant contacted the Supervisory Contract Specialist to inform her that he had not yet received a written determination about LQA from management. The Supervisory Contact Specialist subsequently informed Complainant that he was not authorized LQA as it was a management decision and that other personnel relocated under similar conditions were not authorized LQA. The Agency determined that Complainant failed to establish a prima facie case of race discrimination. The Agency reasoned that Complainant was unable to show that he was treated differently than similarly situated individuals outside his protected group. According to the Agency, Complainant identified other Contract Specialists who he believed were similarly situated, but that Complainant acknowledged the circumstances of their moves were different and that his situation was unique. Assuming arguendo Complainant had set forth a prima facie case of race discrimination, the Agency determined that it articulated legitimate, nondiscriminatory reasons for not granting Complainant LQA when his position was transferred from Stuttgart to Kaiserlautern. The decision to deny Complainant LQA was made by the IMCOM Chief Acquisitions Officer (CAO) who was also the leader of IMCOM G9 Contracting. The CAO explained that “right sizing” the European Region Support Office was part of NAF Contracting’s Human Capital Plan, and that there were thirteen positions in the United States and two positions in Europe that were transferred pursuant to the realignment effort. 0120171124 3 According to the CAO, the denial of LQA for Complainant was consistent with procedures followed by the division in transferring other employees not hired from the United States into the European Region Support Office. The CAO further stated that she considered the budget/funding impact NAF Contracting would incur as a result of approving LQA. The CAO maintained that the transfer of function provided that Complainant would retain his salary and job position and that he was entitled to full permanent change of station costs, but that LQA was never an entitlement as part of the transfer of function notification. According to the CAO, Department of Defense Instruction 1400.25-V1250 grants authority to authorize LQA to otherwise ineligible employees upon a management-directed move with associated permanent change of station costs from one duty station to another. The CAO stated that the authority to grant LQA is discretionary and it is up to the Command to determine whether or not to invoke this provision. The Supervisory Contract Specialist asserted that if an employee was already receiving LQA, the LQA would continue when the employee is transferred; however, Complainant was not receiving LQA. The Agency asserted that the CAO was the authorizing official responsible for deciding whether or not to approve LQA and that the Supervisory Contract Specialist was not authorized to inform Complainant of his entitlement to LQA. According to the Agency, the CAO stated that her decision to deny Complainant LQA was consistent with previous decisions on other employees who were moved and that she considered the impact LQA costs would have on the organization’s budget/funding. The Agency maintained that the decision not to grant Complainant LQA was based on regulation and previous business practices rather than race. The Agency determined that Complainant failed to establish pretext. As a result, the Agency found that Complainant had not been subjected to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Supervisory Contract Specialist was informed by the CAO on June 30, 2015, that he would be receiving LQA. Complainant states that he believes the Supervisory Contract Specialist had the authority to convey such information. Complainant maintains that he relied on the representation that he would be receiving LQA and that he made several decisions based on that information. According to Complainant, there was a practice of granting LQA to locally hired IMCOM G-9 NAF employees who were command directed to move and met the requirement to receive the benefit. Complainant points out that all locally hired employees of the entire IMCOM G9 Europe were granted LQA when the function was transferred from Schwertzenberg, Germany to Sembach, Germany. Complainant argues that all IMCOM Regional employees are staff employees, the same as NAF Contracting employees and there are funds available for them to receive LQA. Complainant maintains that the IMCOM NAF Contracting European Region is the same organization as IMCOM Europe given they are under the same Command. 0120171124 4 In response, the Agency asserts that the LQA is an overseas allowance generally used to recruit employees from the United States to fill overseas assignments. According to the Agency, as a general rule, LQA is not available to local hires. The Agency states that LQA may be authorized for employees in overseas positions who were local hires not receiving LQA, but are subsequently moved to another location overseas. The Agency states that Complainant was hired in Germany as a local hire and that use of LQA for him was discretionary. The Agency explains that IMCOM Europe and IMCOM G9 NAF Contracting are separate organizations and that IMCOM G9 NAF Contracting is not managed by IMCOM Europe. According to the Agency, Complainant was at the time of his move a Contract Specialist assigned to IMCOM G9 NAF Contracting and had never been employed by IMCOM Europe. The Agency stated that Complainant works under the CAO and the CAO had discretion to approve LQA for Complainant, but did not approve it. The Agency acknowledges that locally hired employees received authorization for LQA from IMCOM Europe following a transfer of the entire function from Schwertzenberg, Germany to Sembach, Germany. The Agency points out though that IMCOM Europe employees are not similarly situated to Complainant because they are in another Command. The Agency states that IMCOM Europe leadership has the discretion to authorize LQA, but that Complainant was not part of that move and he was not managed by IMCOM Europe. The Agency maintains that the CAO’s decision not to approve Complainant’s LQA was based on the circumstances applicable to IMCOM NAF Contracting, not IMCOM Europe. Further, the Agency argues that Complainant has not shown that IMCOM Europe employees who received LQA were outside Complainant’s protected class. The Agency states that Complainant did not refer to the race of these employees but rather argued that he should receive LQA since employees in another Command received it. The Agency asserts that the CAO identified seven current or former employees who moved within Europe, but did not receive LQA. The Agency states that only one NAF Contracting employee received LQA. According to the Agency, this employee was a stateside hire which made him different than Complainant, who was a local U.S. hire. The Agency maintains that the record does not indicate that Complainant’s leadership at NAF Contracting ever authorized LQA for any local hires involved in any management directed reassignment. With regard to Complainant’s contention that he made several decisions based on the information he received from the Supervisory Contract Specialist, the Agency argues that a theory of apparent authority has no application to the matter at issue. As to Complainant’s claim that precedent had been set when other employees received LQA and therefore he is entitled to LQA, the Agency asserts that this argument is not based on Complainant’s Title VII protected group and thus is not relevant to his appeal. ANALYSIS AND FINDINGS To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). 0120171124 5 Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We shall assume arguendo that Complainant set forth a prima facie case of race discrimination with regard to the incidents at issue. The Agency explained that the Supervisory Contract Specialist lacked the authority to inform Complainant that he had been granted LQA. The Agency further explained that the granting of LQA was discretionary on the part of the CAO. According to the Agency, IMCOM Europe is one organization and IMCOM G9 NAF Contracting is a separate organization. The Agency states that IMCOM G9 NAF Contracting is not managed by IMCOM Europe. According to the CAO, the denial of LQA was consistent with procedures followed by the division in transferring other employees not hired from the United States into the European Region Support Office. The CAO further stated that she considered the budget/funding impact NAF Contracting would incur as a result of approving LQA. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its denial of LQA. Complainant attempts to establish pretext by arguing that he relied upon the information that he would receive LQA in making several decisions. Additionally, Complainant argues that precedent was set when all locally hired employees of the entire IMCOM G9 Europe were granted LQA when the function was transferred from Schwertzenberg, Germany to Sembach, Germany. With respect to Complainant’s belief that he would receive LQA based on information he received from the Supervisory Contract Specialist, we find that although Complainant did receive such information and apparently unfortunately made decisions based upon such information, there has been no persuasive evidence presented that the Supervisory Contract Specialist had the authority to provide that information. Moreover, we discern no evidence that conveying to Complainant that he would receive LQA was done based on Complainant’s race. As for Complainant’s contention concerning precedent being set, the distinction that Complainant fails to factor is that NAF Contracting is a separate component from IMCOM Europe and under a separate Command. The record does not indicate that Complainant’s leadership at NAF Contracting ever authorized LQA for any local hires involved in any management directed reassignment. There is no indication that race was a factor in the CAO’s decision to deny Complainant LQA. Indeed, the Agency persuasively argued that the CAO considered how granting Complainant LQA would have been unfair to employees not granted LQA under similar situations. Upon consideration of the record and each contention presented by Complainant, we find that he has failed to establish that race was a factor in him initially being told that he would receive LQA or the subsequent decision not to grant him LQA. CONCLUSION The Agency’s determination that no discrimination occurred is AFFIRMED. 0120171124 6 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. 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. 0120171124 7 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 3, 2018 Date Copy with citationCopy as parenthetical citation