0120121739
08-22-2012
Marcela Bodkin, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Marcela Bodkin,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121739
Hearing No. 410-2010-00240X
Agency No. ARUSAR09MAY02063
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 7, 2012 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Military Operations Specialist at the Agency's U.S. Army Reserve Command, GS-3 OPSEC Directorate in Atlanta, Georgia. On June 13, 2009, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity under Title VII when: certain duties were taken from her, she was reassigned to another office, and she was not promoted from GS-12 to GS-13.
The record reflects that one of the primary functions of Complainant's position as a senior military operations specialist was to serve as an organization inspection program (OIP) manager and technical advisor in planning, coordinating and executing random staff inspections as part of OIP. The record also reflects that on February 17, 2008, Complainant's position, along with all other GS positions, was converted to the National Security Personnel System (NSPS). Her grade at that time was a YA-02. On August 11, 2009, Complainant's position was then re-designated as an organization instruction program specialist, YA-02. On June 20, 2010, the Army reverted from the NSPS, so Complainant's position was now again a GS-12.
The record further reflects that in early 2009, the Agency's Business Transformation Office (BTO) conducted a study on how to best combine the Agency's G-3, which was Operations, the G-5, which was Plans, and the G-7, which was the Training Directorate into a combined G-3/5/7. Part of that study was to determine efficiencies where existing functions could be properly located and performed. The study concluded that the OIP function should be assigned to the Readiness Division and that OPSEC should be assigned to the Homeland Defense Division. Consequently, Complainant could not perform duties in two separate divisions, so she was assigned to continue to perform her OIP duties in the Readiness Division and her OPSEC duties were transferred to the Homeland Defense Division where those duties were being performed by a military officer.
During the period from 2007 to 2009, while Complainant was assigned OIP responsibilities and OPSEC responsibilities, her supervisor determined that the additional duties warranted an upgrade of her position. Initially, management's inclination was to promote Complainant from a GS-12 to a GS-13. However, Complainant was no longer in the GS system, so this type of promotion was not allowed.
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).
On January 3, 2012, the AJ issued a decision after a hearing finding no discrimination. In reaching this decision, the AJ determined that even if Complainant could establish a prima facie case, the Agency had articulated legitimate, nondiscriminatory reasons for its actions. The AJ explained that with regard to Complainant not receiving a job promotion from GS-12 to GS-13, that initially when Complainant's job positions were submitted to the Agency, the Human Resource Office responded that the promotion package was improper because it listed the positions as a GS-12 to a GS-13, instead of a YA-02, and there was other information in the packet that was improper. Therefore, it was sent back and the package was rewritten and was resubmitted. However, once again, the Human Resource Division did not consider the package to be appropriate, in that it did not have Complainant under the YA-02, putting forth Complainant for a promotion, rather than an upgrade of duties. Simply put, under the new personnel system a promotion was the wrong action to request and Complainant's supervisors did not prepare the packet correctly. With respect to the changes in Complainant's duties and Complainant's cubicle reassignment, the AJ noted that that these actions were simply the result of the Reserve Command BTO study, which outlined the needs of the office.
Further, the AJ found that there is no evidence in the record, and Complainant has not proffered any, to support an inference that the Agency's decision was based on retaliation for prior EEO activity. The AJ noted that, if anything, Complainant was attempting to establish that the Agency had retaliatory animus towards her, not because of her EEO activity, but because of complaints that she had made concerning the internal structure and running of the operations of the Agency.
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. Nat'l Labor Relations Bd., 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.
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). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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 United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
On appeal, Complainant conjectures and asserts that she is a victim of unlawful discrimination. However, Complainant has not produced evidence to show that the Agency's explanations are a pretext for discrimination.
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 (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 22, 2012
__________________
Date
2
0120121739
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121739