Marybeth C.,1 Complainant,v.Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.

Equal Employment Opportunity Commission

Aug 29, 2016

0120150794 (E.E.O.C. Aug. 29, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Marybeth C.,1
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.

Appeal No. 0120150794

Hearing No. 410-2013-00238X

Agency No. DOI-FWS-12-0458

DECISION

The Commission accepts Complainant’s appeal from the December 23, 2014 final Agency
decision (FAD) 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’s review is de novo. For the
following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Analyst
at the Agency’s Southeast Regional Office in Atlanta, Georgia. In or around October 2011,
Complainant claimed that her first and second-level supervisors (S1 and S2 respectively)
submitted a GS-13 promotion announcement packet to the Deputy Regional Director (DRD).
In November 2011, Complainant inquired about the status of the packet. Complainant claimed
that S2 informed her that the paperwork was approved by DRD, but would need further
approval by the Assistant Regional Director for Budget and Administration (ARD).
Complainant alleged that she was told that ARD did not feel that the promotion packet
warranted a GS-13 grade level. According to Complainant, S2 spoke with DRD again to

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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appeal to him to re-consider, but DRD did not approve the promotion based on ARD’s
recommendation. On June 13, 2012, Complainant claimed that S1 and S2 informed her that
the promotion was officially denied.

On August 26, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases2 of race (African-American), color (Black), and in
reprisal for prior protected EEO activity when on June 13, 2012, she was informed that her
first and second-line supervisors (S1 and S2) were no longer going to submit the GS-0343-13
promotion announcement packet which was previously approved then officially denied.3

At the conclusion of the investigation of the complaint, the Agency provided Complainant with
a copy of the report of investigation (ROI) and notice of her right to request a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant
timely requested a hearing, but subsequently withdrew her request. Consequently, the Agency
issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and determined that management articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, management stated that there was no
promotion packet specifically for Complainant and that, instead, S1 and S2 submitted a request
for approval to advertise for a new Budget Analyst position, a position that was not guaranteed
to Complainant and one for which she would have to competitively apply. After several
rounds of review, it was determined that the duties put forth in the package did not support the
GS-13 grade level. The position was never approved and, thus, was never advertised.
According to S1, Complainant misunderstood the actions taken and believed that he was
submitting information for her own promotion even though it was explained to her that he
could not do an accrual of duties promotion for her.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. Complainant filed the instant appeal without
submitting any arguments or contentions in support.

2 Complainant initially included age as a basis of discrimination; however, she withdrew that
basis during the investigation and added reprisal.

3 The Agency dismissed several additional claims as untimely and for failure to state a claim.
Complainant raised no challenges to the Agency’s dismissal while the matter was before the AJ
or on appeal; therefore, the Commission will not address those claims in this decision.
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ANALYSIS AND FINDINGS

Disparate Treatment

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 she 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). 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).

Upon review of the record and assuming Complainant established a prima facie case of
discrimination on the alleged bases, the Commission finds that the Agency articulated
legitimate and nondiscriminatory reasons for its actions. More specifically, S1 explained that
the packet in question was not a promotion announcement packet for Complainant specifically.
ROI, at 197. S1 and S2 affirmed that they prepared a package to advertise a GS-13 Budget
Analyst position, but were informed after reviews by DRD and ARD that the package did not
support the GS-13 grade level. Id. at 198, 201. As a result, the position was never approved
and never advertised. S1 noted that management believed that Complainant would be well
qualified for the position in the proposed announcement package, but it was not a promotion
specifically for her. Id. at 198. S1 added that management previously pursued the idea of
promoting Complainant through an accretion of duties, but the Chief of Human Capital
Management advised them that they could not do so and needed to competitively advertise a
position. Id. at 197-98. S1 emphasized that no promotion package or paperwork was ever
created to specifically promote Complainant. Id. at 198.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant chose to withdraw her request for a hearing, the Commission does not have
the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore,
the Commission can only evaluate the facts based on the weight of the evidence presented.
The Commission finds no evidence that Complainant's protected classes were a factor in any of
the Agency’s actions. Complainant's subjective belief that the management actions at issue
were the result of discrimination or reprisal is insufficient to prove pretext. At all times, the
ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence
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that the Agency's reasons were not the real reasons and that the Agency acted on the basis of
discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant was not subjected to discrimination or reprisal as alleged.

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 Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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).

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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

August 29, 2016
Date