Maureen L. Reeves, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 22, 2009
0120090040 (E.E.O.C. Jan. 22, 2009)

0120090040

01-22-2009

Maureen L. Reeves, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Maureen L. Reeves,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120090040

Agency No. NR0200704F08

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's August 26, 2008 final decision concerning

her equal employment opportunity (EEO) complaint alleging employment

discrimination in violation of the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

During the period at issue, complainant was employed as a Human Resources

Specialist, GG-0301-12, at the agency's Air Force Element (AF Element)

of the Office of Human Resources, National Reconnaissance Office (NRO)

in Chantilly, Virginia.

On July 20, 2007, complainant filed the instant formal complaint.

Therein, complainant alleged that the agency discriminated against her

on the basis of age (57) when:

1. on November 28, 2006, she was reassigned to a position as an Awards and

Recognition Team Administrator, GG-0301-12, in the Awards and Recognition

Team (ART) in the Office of Human Resources (OHR) in the NRO; and

2. on May 22, 2007 she learned that she had not been allowed to compete

for a promotion to a Human Resources Specialist, GG-0301-13, in her

former unit.

At the conclusion of investigation, complainant was provided with a copy

of the report of the investigation and notice of the right to request

a hearing before an EEOC Administrative Judge or a final decision

within thirty days of receipt of the correspondence. Complainant did

not respond. On August 26, 2008, the agency issued the instant final

decision.

In its August 26, 2008 final decision, the agency found no discrimination.

Specifically, the agency determined that management articulated

legitimate, nondiscriminatory reasons for its actions which complainant

failed to show were a pretext.

Regarding claim 1, complainant's first level supervisor (S1) stated

that the Director of Human Resources approached complainant's second

level supervisor (S2) requesting assistance on the ART. Specifically, S1

stated that the Director wanted someone who had some knowledge concerning

awards and NRO. S1 stated that S2 asked him for a recommendation,

and he suggested complainant "because I knew that the Complainant had

some self-professed experience in processing awards for the Navy and

to some degree for the Air Force, and I also thought that she wanted

a change in duties. I knew the Complainant had been doing her job for

several years and it had become monotonous, and she wanted a change."

S1 stated that because he felt that the new position would be a good

opportunity for complainant, he recommended her for the reassignment.

S1 stated that during the relevant period, the new position in the ART

was identified as a GG-12 and "I had no reason to believe that the duties

would be less that of a GG-12 position."

Further, S1 stated that when he learned that complainant was unhappy about

the reassignment, he "talked with her and reminded her of conversations

that she and I had regarding how busy she had been in the Civilian

Personnel Office, as our work is consistently busy, and how tired

she claimed to be at night." S1 stated that he told complainant that

he felt that the ART had "peaks and valleys in [its] work depending

on the awards that had to be processed." S1 stated that complainant

later informed him that she was "so happy" she took the reassignment.

S1 stated "I considered reassigning [an identified agency employee

(E1)], but I felt like the Complainant had more NRO experience than

[E1], and she had seen the NRO go through different changes and had

more experience in award processing. I made my recommendation based

upon the Complainant's experience."

S2 stated that he and S1 made a determination to reassign complainant

"based upon the need in the Awards and Recognition Team." Specifically,

S2 stated that he was told that the agency needed some help in the

Awards and Recognition Team "because we had an Air Force Staff Sergeant

that worked in that area who because of medical and personal reasons was

often absent. We felt like we needed someone to help. The Complainant

was the only employee we knew that had experience in working with awards

[emphasis added]." S2 stated that during the relevant time, complainant

"never said that she did not want to be reassigned. If she had voiced a

concern or disagreement in being reassigned then we would have considered

her response and reasons before reassigning her." S2 stated that

approximately three weeks after complainant started her reassignment,

she informed him that she was "glad to be out of the Civilian Personnel

Office and be doing something different."

The Director stated that the determination to reassign complainant "was

based on her previous experience in processing DoD awards and my need

to fill a critical vacancy." Specifically, the Director stated that

the Office of Human Resources faced a staffing shortage on the ART.

The Director further stated that she approached S2 concerning the

availability of qualified staff in her area regarding who could be

reassigned to fill this critical requirement. The Director stated that

S2 referred her to complainant because she had prior experience in awards

processing. The Director stated that S2 supported the reassignment and

met with complainant to inform her that she was being directed to the

ART; and that the position she was being moved to "was of the same grade

as the position she encumbered in the Air Force Element." The Director

stated that complainant accepted the reassignment and "quickly became

a fully contributing member of the team and on at least one occasion,

reported to me that the move had been a good one and she was enjoying

her work." Furthermore, the Director stated that complainant "never

told me that she did not want to be reassigned."

Regarding claim 2, S1 stated that E1 was non-competitively promoted

"because under the merit promotion system, you do not have to compete

positions externally or organizationally as long as the minimum

competition includes all of the employees of the same grade under

the supervisor." S1 stated that because complainant was no longer an

AF Element employee, she was not in the pool of candidates. S1 stated

that because E1 was the only GG-12 employee eligible, he and S2 felt that

she was "competent to perform the GG-13 duties, so we non-competitively

promoted her to the GG-13 position."

With respect to complainant's assertion that she was reassigned as a means

of setting E1 up for a promotion, S1 denied it. S1 stated that he and S2

"could have reassigned either employee. We could have also promoted [E1]

to a GG-13 position regardless of whether the Complainant had remained

in the Civilian Personnel Office." Furthermore, S1 stated that he was

not aware of complainant's age or E1's age until after complainant filed

the instant complaint.

S2 stated that during the relevant time, E1 was on an overhire position

"for over a year and we had attempted to place all of the NRO overhire

employees on permanent positions." S2 further stated that management was

able to place E1 on a permanent position when another vacancy opened and

that complainant's reassignment "did not have anything to do with [E1's]

promotion." S2 stated that he and S1 promoted E1 to a GG-13 position

because "she was already doing the duties well, better than the average

person; and we felt like she could do the duties of the GG-13 position."

S2 also stated that he received positive comments from the NRO customers

and the Air Intelligence Command regarding how well E1 was managing

the job. Furthermore, S2 stated that he did not discriminate against

complainant based on her age.

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

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, nondiscriminatory reason for its actions. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Once the agency has met its burden, the 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.

See St. Mary's Honor Center 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. 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).

In the instant case, we find that the agency articulated legitimate,

nondiscriminatory reasons for its actions which complainant did not prove,

by a preponderance of the evidence, were a pretext for discrimination.

After a review of the record in its entirety, including consideration

of all statements 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 (M1208)

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 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).

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

January 22, 2009

__________________

Date

2

012009040

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

7

0120090040