0120065270
12-12-2008
Mary D. Marshall, Complainant, v. Lt. Gen. Keith B. Alexander, Director, National Security Agency, Agency.
Mary D. Marshall,
Complainant,
v.
Lt. Gen. Keith B. Alexander,
Director,
National Security Agency,
Agency.
Appeal No. 0120065270
Agency No. 05-014
DECISION
Complainant filed an appeal with this Commission from the August 24,
2006 agency decision finding no discrimination.
Complainant alleges 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.
In her complaint, complainant alleged that the agency discriminated
against her on the bases of sex (female) and age (44) when she was
not promoted to a grade level GG-15 during the 2004 promotion cycle.
Complainant also alleged that she was discriminated against when she
was not ranked higher on the nomination list submitted by the Chief of
the Analysis and Assessments Group (AAG Chief), Information Operations
Technology Center (IOTC).
At the conclusion of the investigation of her complaint, 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.
Complainant requested issuance of an agency decision.
In its decision finding no discrimination, the agency found that
complainant failed to establish a prima facie case of age and sex
discrimination based on disparate treatment because all of the IOTC
employees who were promoted were 40 years old or over, and two of
the individuals promoted to the GG-15 were females. The agency also
determined that the agency had articulated legitimate, nondiscriminatory
reasons for not promoting complainant and, further, that complainant
had failed to show that the agency's reasons were mere pretext to hide
unlawful discrimination. In reaching its conclusion, the agency noted
statements from management officials that complainant was not promoted
because of keen competition and lack of funds. The agency also noted
that complainant was competitive for promotion but not as competitive
as the candidates who were promoted. The agency noted further that
complainant and the promoted employees received superior performance
evaluation ratings from various supervisors in the years preceding
the 2004 promotion cycle; that complainant and the promoted employees
were serving in various leadership roles; and that complainant and the
promoted employees had received awards since their last promotions.
On appeal, complainant raises several arguments. Complainant asserts that
the agency decision failed to address the real issue of her complaint,
contains inaccurate statements, and is vague as to the reason why she was
not promoted; that the agency's investigation was incomplete; and that
agency officials fabricated statements made during the investigation.
Regarding the issue of her complaint, complainant asserts that her claim
of discrimination is not that she was not selected for the promotion but
that the AAG Chief failed to consider her significant accomplishments,
ranking her third in the nomination process. She contends that she
should have been nominated at least as high as second and most likely
first in the ranking.
Regarding the investigation of her complaint, complainant asserts
that the agency did not develop an impartial and appropriate factual
record, indicating that the agency failed to produce any evidence to
corroborate the assertions in the affidavits of her supervisor and that
the AAG Chief provided contradictory statements. Complainant further
asserts that she was not provided score sheets for the fiscal year 2004
promotion cycle until she received them as attachments on August 25,
2006, with the agency's decision. She asserts that she and one of the
males (Nominee A) who ranked higher than she ranked, received the same
score of 95 from the AAG Chief but no explanation was provided why she
was ranked third and did not tie with Nominee A. Complainant further
asserts that a complete investigation would have questioned the lack of
notes to explain the tied score and how the tied scores were resolved.
Complainant also asserts that the affidavits of the AAG Chief and the
AAG's Deputy Chief indicated that the AAG Chief exhibited sex and age
biases toward her and Person A, another female, but that this evidence
was not included in the investigative report.
Complainant asserts that the rationale for the priority of promotion
nominees was required to be included in the Nomination Priority List
and that the AAG Chief's list violated the requirement because it did
not contain a rationale and the AAG Chief failed to provide a rationale
to her, the EEO Counselor, or to the investigator.
Complainant also stated that neither her supervisor nor the AAG Chief
was asked to address the items in her May 11, 2006 comments on the
investigative file in which she claimed that the AAG Chief perjured
himself in his affidavit on the issues of his socialization with male
members of the AAG or asked to address questions which she flagged
as questionable in the affidavits of her supervisor and the AAG Chief.
She also noted that the agency failed to report the potential bias between
her supervisor and the AAG Chief. Complainant stated that the reference
in the decision that she needed to take on a greater leadership role
was a fabrication and that she had not discussed this with either her
supervisor or the AAG Chief.
Complainant further asserts that the investigator failed to interview
witnesses who would substantiate her claims and that she was not invited
to review the investigative file before it was sent to her.
Regarding credibility, complainant asserts that the AAG Chief's
recollection of her contributions to the agency for the period preceding
the 2004 cycle changed between the time he was interviewed by the EEO
Counselor in 2004, and interviewed during the investigation in 2005,
and, further, that the investigation failed to address this difference.
She also asserts that having received recognition from both her
supervisor and the AAG Chief for her exemplary leadership skills
in the form of performance appraisals, awards, manager's nomination
justification statements and electronic mail, their prior recognition
of her achievements discredited their affidavits.
Regarding not being chosen, complainant asserts that her record was
objectively superior to the records of the nominees who ranked higher
than she ranked and that although her accomplishments had more impact
to the intelligence community than those of the two males ranked higher
by the AAG Chief, the AAG Chief offered no evidence to support ranking
the two ahead of her. Complainant also asserts that promotions at the
agency were to be based on achievements since the last promotion and
that the two, higher ranked nominees did not have accomplishments of the
magnitude that she had achieved since her last promotion, noting also
that she held a Master's degree and that she had brought to fruition a
program on which both of the nominees had previously worked; that she
mended confrontational relationships that the nominees had created in
that program; and that whereas she took action, the nominees demonstrated
lack of responsiveness in moving the program forward.
Complainant asserts that the score sheets submitted by the Deputy Chief
and his prioritized list established a pattern showing that women over
40 years old being overlooked by the AAG Chief and confirmed statements
made by the Deputy Chief in his affidavit. She asserts further that
an explanation is needed to determine why a woman over 40 years old was
bypassed for a promotion by a lower scoring, younger male. She asserts
also that both she and another female were rated first on the lists
prepared by their respective supervisors, but neither held the first
two positions on the AAG Chief's list.
Regarding the agency's decision, complainant argues that there were
errors in the agency's legal analysis. She noted that the agency did not
sufficiently articulate a legitimate, nondiscriminatory reason in its
decision finding no discrimination, providing only a general summary
which did not provide any insight into how her qualifications were
evaluated in comparison to the two nominees. Complainant also asserts
that there was no documented basis for the agency finding that she was
not as competitive as the individuals promoted, noting that the statement
compares her to more than the two nominees ranked higher than she was.
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 generally establish a prima facie case by demonstrating
that complainant 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 where 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).
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age."
29 U.S.C. � 623(a)(1). When a complainant alleges that he or she has
been disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves, supra, at 141 (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,
610 (1993)). "That is, [complainant's] age must have actually played a
role in the employer's decision making process and had a determinative
influence on the outcome." Id.
Because 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
a de novo review by the Commission. 29 C.F.R. � 1614.405(a).
As an initial matter, the Commission addresses complainant's claim that
the investigation was deficient and inadequate. Having reviewed the
investigative record consisting of several volumes, the Commission finds
that the record contains sufficient information upon which to determine
whether the agency's actions were the result of an unlawful discriminatory
motive. See 29 C.F.R. � 1614.108. We find also that the agency conducted
an impartial and appropriate review of the circumstances under which the
discrimination allegedly occurred, including the limited issue defined
by complainant, such that a factfinder could draw conclusions as to
whether discrimination occurred. The Commission notes that although
in a May 11, 2006 letter complainant raised questions challenging the
truth of statements made in management affidavits, the record contains
an electronic mail, dated August 11, 2005, from complainant in which
she stated that "the formal folder contained everything that I thought
should be there. For the first time I feel as though the investigation
can benefit from all the documentation that I have provided. I was very
impressed with [the Senior EEO Investigator's] thoroughness."1 As late as
April 20, 2006, in an electronic mail message to the Senior Investigator,
complainant stated that she was "very impressed" with the three volumes
regarding her case, that she was grateful for all the hard work that
had gone into documenting her case, and that her case took many hours
to compile. She also stated that upon reviewing her copy of the file
that she noticed a "few things" that she wanted to point out and that
considering the amount of material, that the things she referred to were
"trivial" in comparison to the number of items in the file. In addition,
we cannot find that additional interviews would likely yield material
evidence on matters specific to complainant's claim.
For the first time on appeal, the agency asserts that complainant was
not aggrieved because she was recommended by the AAG Chief to the next
level of consideration for a promotion. Ultimately, the instant complaint
concerns complainant's non-promotion and therefore states a claim.
The Commission finds that the agency did not discriminate against
complainant when she was not ranked higher than #3 by the AAG Chief and,
also, when the agency failed to promote her to the position. The record
reveals that pursuant to the IOTC chain-in-command process for the
promotion, complainant's supervisor reviewed the Performance Review
Package (PRP) submitted to her by employees and that she evaluated the
employees against established criteria. Complainant's supervisor ranked
complainant as the top nominee of the two names she was submitting.
Complainant's supervisor then submitted her nomination list to the next
person in command, the AAG Chief, for his review and recommendation.
Complainant's supervisor provided her reason for her recommendations
using established promotion criteria. The record also reveals that the
AAG Chief reviewed the PRPs, ranked complainant third and he provided his
list of nominees to the next level of review. The AAG Chief's list was
submitted along with the lists of nominees which were also being submitted
by four other IOTC office chiefs who also provided their rankings of
their office nominees for promotion. The record reveals that the IOTC
Director reviewed the PRPs comparing each employee's achievements against
the established criteria and then forwarded a nomination priority list
(NPL) to the promotion selection official.
We find that the AAG Chief ranked complainant third based on established
criteria. In addition, the record reveals that competition was keen
for promotional slots. The record reveals also that in the layer of
review above the AAG Chief, complainant could have moved up in ranking
on the list but was instead moved down during higher level reviews.
The Commission has recognized that the agency has broad discretion
to set policies and carry out personnel decisions, and should not be
second-guessed by the reviewing authority absent evidence of unlawful
motivation. See Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 259 (1981); Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997). The Commission will not second guess the
agency's business decision in a matter such as this unless complainant
can establish that such action was prompted by discriminatory animus.
The trier of fact must understand that the focus is to be on the
employer's motivation, not its business judgment. Loeb v. Textron,
Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). While complainant may
have been dissatisfied with management's choice, the Commission has
recognized that an employer has the discretion to determine how best
to manage its operations and may make decisions on any basis except a
basis that is unlawful under the discrimination statutes. In addition,
a finding that one explanation by an agency for a personnel action is
invalid does not mandate a finding that the act was discriminatory; all
the agency's proffered reasons must be examined. See Sims v. Cleland,
813 F.2d 790, 793 (6th Cir. 1987); Pollan v. United States Postal Service,
EEOC Request No. 05891093 (January 19, 1990). Further, even assuming that
the agency failed to follow some of its own rules in the promotion process
as complainant has asserted, there is no evidence which establishes that
this failure was motivated by prohibited discrimination.
The Commission also notes that complainant called into question
statements made in affidavits. The Commission notes that it is not
sufficient "to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination." St. Mary's
Honor Center v. Hicks, supra, at 519. Moreover, even if the agency
lied, complainant must link the lie to the prohibited discrimination.
Complainant has not done so.
Further, we do not find that the agency's articulated reasons were
pretextual. Although complainant has asserted that because the AAG
Chief was a buddy to the two males he ranked them higher than he ranked
her, we find no evidence that the AAG Chief did so for discriminatory
reasons. Employment decisions based on friendship or favoritism are
not in violation of Title VII or the ADEA, so long as they are not also
premised on some basis which is unlawful under Title VII or the ADEA.
See Goosetree v. State of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986);
McClinton v. Department of the Air Force, EEOC Request No. 05921032
(May 6, 1993).
The Commission finds that the record, considered as a whole, does not
establish that agency officials were motivated by discriminatory animus
in not ranking complainant higher on the list or not promoting her.
Complainant has not shown that her qualifications were plainly superior
to the selectee.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z1008)
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
December 12, 2008
__________________
Date
1 We note that another investigator was involved prior to the assignment
of the investigator referenced above.
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0120065270
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065270