0120170421
07-17-2018
Mamie T.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mamie T.,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120170421
Hearing No. 570-2014-00750X
Agency No. 51-2013-00240
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 October 11, 2016 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 AFFIRMS the final agency decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as an Equipment Facilities Services Assistant at an Agency facility in Washington, DC. On September 9, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against her based on reprisal for prior protected EEO activity (June 2008 complaint, resulting in District Court decision in March 2013) when the Agency cancelled Vacancy Announcements OSOAS-2013-0008 and 0009, Building Management Specialist, ZA-1176-02/03, and restructured and re-announced the positions under Announcement OSOAS-2013-0030 to disqualify Complainant from consideration. The Agency accepted Complainant's claim for investigation.
Investigation
Complainant's Immediate Supervisor (S1) (prior EEO activity) stated that she agrees that the vacancy was cancelled and restructured to disqualify Complainant from consideration. S1 stated that the vacant position was in her division. S1 stated that Complainant had at least a year of experience at the ZA-1176-02 level when the Agency announced the vacancy at the ZA-1176-02/03 level, which would have rendered Complainant qualified. S1 stated that the Agency re-announced the position at the ZA-1176-03 level to make it outside of Complainant's grade. S1 alleged that the Building Management Associate Director (S2) re-announced the vacancy, under Announcement OSOAS-2013-0030 at the ZA-1176-03 level, to retaliate against Complainant. Also, S1 alleged that S2 sought to preselect a peer manager's friend (C1), who wanted to leave his wage grade position for vacancy OSOAS-2013-0030. S1 stated that she was "shut out" of the process to rewrite the position description for OSOAS-2013-0030, but did serve on a second-round interview panel. S1 stated that she later heard that Vacancy OSOAS-2013-0030 was cancelled and a selection never finalized.
S2 (prior EEO witness for management) stated that he learned of Complainant's prior EEO activity in 2010 when he participated in the mediation process. S2 stated that, on January 23, 2013, the Office Director (S3) informed him of a reorganization and of the need to use the funding for the Building Management Specialist position for a supervisory vacancy instead. S2 stated, on January 24, 2013, he informed Human Resources to cancel Announcements OSOAS-2013-0008 and 0009. S2 stated that he did not receive any applications, application lists, or certification lists prior to cancelling the announcements. S2 stated, later, the vacancy became a Band 3 position due to increased duties, under Announcement OSOAS-2013-0030. S2 stated that S3's office forwarded the vacancy to Human Resources for processing, and the Facilities Deputy Director (S4) became the selecting official for the position. S2 stated that S4 chose C1 for the position. S2 stated that HR later informed him that there was a "misstep" in the hiring process (S2 served as subject matter expert and sat in on interviews for the same position) so the Agency cancelled Vacancy OSOAS-2013-0030 without any formalized selection. S2 stated that he did not disqualify Complainant from selection and is not aware of any preselection. S2 stated, in September 2013, HR posted Vacancy OSOAS-2013-0036 (Building Management Specialist), but it was later cancelled due to multiple complaints regarding the vacancy. Management sought to learn about the complaints and resolve any issues regarding the hiring process.
The Deputy Director, S4, stated that he did not disqualify Complainant from eligibility, did not preselect a candidate, and did not make modification to the qualifications for a candidate.
Post-Investigation
Following the EEO investigation, 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). Complainant timely requested a hearing. On September 30, 2016, after a hearing, the assigned AJ issued a decision finding no discrimination. Specifically, the AJ stated that the Agency cancelled OSOAS-2013-0008 and 0009, ZA-1176-02/03, to fund a pending reorganization and consider increasing duties and filling skill gaps of the position. The result was OSOAS-2013-0030, which was at the 03 level instead of 02/03 like the initial announcement. The AJ stated, subsequently, the Agency cancelled OSOAS-2013-0036 to learn about the multiple related complaints and resolve any issues regarding the hiring process. The AJ stated that Complainant relied heavily on S1's allegations of retaliation, but she found S1's claims "supposition at best." The AJ noted that S1 referred to management's discussion, at management meetings, of attempts to resolve EEO complaints as retaliatory motive. The AJ disagreed, and found that S1 was primarily concerned with what she viewed as preselection to her division. The AJ stated that it was clear at the hearing that S1 disliked S2 and had issues with her performance feedback under S2. The AJ found S1 "not credible" and that her testimony failed to support Complainant's allegation of retaliation. Alternatively, the AJ found S2 credible as a witness. The AJ noted that Complainant and S1 alleged preselection based on friendship status rather than EEO activity. The AJ found that Complainant failed to show that her qualifications were plainly superior to C1 who she alleged was preselected. In a decision dated October 11, 2016, the Agency fully adopted the AJ's decision.
The instant appeal from Complainant followed. On appeal, Complainant stated that the cancellation and modification of the Building Management Specialist vacancy equated to a per se reprisal violation.
ANALYSIS AND FINDINGS
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. National Labor Relations Board, 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 EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence of record supports the AJ's determination that Complainant has not proven discrimination by the Agency as alleged.
Disparate Treatment
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 case 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, non-discriminatory reason for its actions. See Texas Department of Community 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
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, non-discriminatory 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).
Even assuming arguendo that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, non-discriminatory reasons for the matters at issue. Due to a pending reorganization, the Agency found a need to use the funding from the Building Management Specialist position for a supervisory vacancy instead. The Agency cancelled the initial vacancy announcements. Subsequently, it found that it could have the Specialist position, but needed to increase duties and thereby grade level. Due to an error in conducting the staffing process, the Agency did not make a formalized selection in the re-announced vacancy. The Agency re-announced the position again but later cancelled that announcement as well to research complaints regarding the matter and remaining concerns regarding the hiring process. The Agency stated that Complainant was not disqualified from the position based on her prior EEO activity or on preselection.
Per Se Violation
Further, although Complainant argues on appeal that she established a per se violation when the Agency cancelled and later modified a vacant position after management discussed resolution and status of EEO matters at a management meeting, we find that this does not rise to the level of a per se violation of our regulations prohibiting retaliation.
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual, Section 8: Retaliation (May 20, 1998); Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process).
Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998) (complainant told that filing an EEO suit was the wrong way to go about getting a promotion).
Agencies are obligated to ensure that managers and supervisors perform in such a manner as to "insure a continuing affirmative application and vigorous enforcement of the policy of equal opportunity." 29 C.F.R. � 1614.102(5); Binseel v. Dep't of the Army, supra; Woolf v. Dep't of Energy, EEOC Appeal No. 0120083727 (Jun. 4. 2009), request to reconsider denied, EEOC Request No. 0520090560 (August 21, 2009) (per se violation found when a labor management specialist told the complainant, "as a friend," that his EEO claim would polarize the office); Vincent v. U. S. Postal Service, EEOC Appeal No. 0120072908 (Aug. 3, 2009), request to reconsider denied, EEOC Request No. 0520090654 (Dec. 16, 2010) (per se violation found where supervisor during an employee meeting referenced that EEO complaints had been filed and said, "what goes around, comes around"). When a supervisor's behavior has a potentially chilling effect on the use of the EEO complaint process, a per se violation is the ultimate tool that employees have to enforce equal employment opportunity.
We find, however, that Complainant has failed to demonstrate that management's inquiry about the status of pending EEO complaints at a managerial meeting established a per se violation. Complainant did not show that management's behavior had or reasonably could have had a potentially chilling effect on the use of the EEO complaint process. We agree with the AJ's finding of no discrimination.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final Agency order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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.
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
July 17, 2018
__________________
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.
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