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