0120170477
04-11-2018
Margorie F.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Margorie F.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120170477
Agency No. 201526439FAA05
DECISION
On November 2, 2016, 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 September 29, 2016, final decision 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.
ISSUE PRESENTED
Whether the evidence of record established that Complainant was subjected to discrimination based on race (Native American) and/or sex (female) when she was not considered for the position of "Lead" Human Resources Specialist.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources (HR) Specialist, H Band, at the Agency's Federal Aviation Administration (FAA), Office of Human Resource Services (AHF-C420) facility in Oklahoma City, Oklahoma.
On September 15, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Native American) and sex (female) when she was not considered for the "Lead" Human Resources Specialist position.
The Agency accepted the complaint and conducted an investigation.
Complainant testified in her affidavit during the investigation that she was not considered for the non-competitive assignment as a "Lead" HR Specialist. She said she did not know about the opportunity because there was no solicitation of interest from management. She learned about the assignment when the Manager of Aviation Careers, also her second-level supervisor ("S-2") sent an email to all the staff on June 15, 2015, announcing that C-1 (Caucasian female) had been moved into a lead role. She indicated she did not know whether anyone else had been considered for the assignment. She stated that no reason was provided for not being considered for the assignment. She also stated that she was not claiming that she was better qualified than C-1 for the assignment, only that she was not provided the opportunity to compete for the assignment.
S-2 (Asian female) stated that prior to January 2015, the unit had two first-line supervisors. However, in January 2015, one of the supervisors retired, leaving Complainant's first-line supervisor, the Supervisory HR Specialist ("S-1") (Caucasian male), as the sole remaining supervisor. A decision was made not to fill the vacated supervisory slot after an internal review process and a determination of where the office could streamline its processes across both teams.
S-2 stated that the Director of HR Services Management ("S-3") (Caucasian female) recommended to her that she make C-1 a Lead to assist with the workload so that S-1 could focus on managing everything else. She emphasized that the lead position was a reassignment, and not a competitive position, involving a selection process. She explained management could make it a non-competitive change of duties because C-1 already had the Quality Assurance responsibility over an entire team, a responsibility the Complainant did not have. C-1 did not receive a pay increase. Her salary remained the same, although her duties increased.
S-2 further asserted that no other employee other than C-1 was considered for the Lead position because other than S-1, C-1 was the only other I-Band graded employee. In addition to Complainant, no other H-Band employees were considered, including: A1 (Caucasian male), A2 (Caucasian male), A3 (race unknown, female), A4 (Caucasian female), A5 (Hispanic male), A6 (Black female), A7 (Caucasian female), A8 (Caucasian female), and A9 (Caucasian female).
S-2's explanation of the rationale for the selection of C-1 for the Lead assignment was confirmed by S-3 in her affidavit during the investigation.
S-1 also confirmed that C-1 was hired as a Quality Assurance/Quality Analysis HR Specialist, I-Band, in the fall of 2014. He stated that, after the retirement of the other supervisor, S-2 asked him if he would have an issue with C-1 being named Lead to help with the work flow. He did not select C-1 for the assignment, but did not object. He further confirmed that her duties, but not her pay, changed because of the new assignment.
The record also shows that sometime later, in July 2015, management made an announcement that they were seeking interest in a "captain" assignment for a new team. Two employees expressed interest and S-1 named them as co-captains (both Caucasian females). He stated that Complainant did not express interest in the assignment until after the selectees were announced, when she confronted him because she had been absent when the announcement was made. S-1 stated that, as a result of some realignment of the teams, the team captain role was eliminated in September 2015.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
The Complainant presented no new statement on appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, the responsible management officials all testified that the Lead position was created following the retirement of a supervisor and a decision made not to fill the position. The goal was to have the Lead assume some of the workload of the now-retired supervisor, while S-1, the remaining supervisor, managed the team. The Lead was not a supervisory position, and there was not competitive process for the selection. C-1 was selected because she was the only I-Band graded employee on the team. It was an increase in the duties assigned to C-1, but not pay, as she already had the Quality Assurance responsibility over the entire team.2 Like Complainant, none of the other H or G-Band employees (of varying races and genders) were considered for the Lead position because they were not in the I-Band.
In an effort to prove pretext, Complainant raised a number of other "selections" where she believed she had been passed over. For example, she cited the team captain assignment selection in July 2015. However, it is undisputed that Complainant was not considered for this assignment because she did not express any interest in it following the announcement about the assignment. The two employees who expressed interest to management were selected. Complainant also asserts, without evidence, that management decided not to fill the supervisory slot following the retirement of the Supervisory HR Specialist because a pre-selected Caucasian female was not on the referral list. However, management witnesses adequately explained their rationale for reorganizing the supervision of the team, including the creation of the Lead assignment. In sum, Complainant has failed to prove, by a preponderance of the evidence, that management's explanations for the process it employed in selecting someone for the Lead assignment was really pretext designed to mask race or sex discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision, concluding Complainant failed to prove her discrimination claim.
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
_4/11/18_________________
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 S-2 testified that when the I-Band Quality Assurance position was advertised in 2014, Complainant did not apply for it.
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