0120091996
09-25-2009
Minza M. Shiraki-Higa, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Minza M. Shiraki-Higa,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120091996
Agency No. 07-00604-02383
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's March 9, 2009 final decision concerning two EEO complaints that claimed unlawful 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.
During the period at issue, complainant was employed as a Lead Supply Technician, GS-2005-07, at the agency's Fleet Industrial Supply Center in Pearl Harbor, Hawaii.
Complainant filed two formal complaints on November 6, 2007 and May 9, 2008, respectively. Therein, complainant claimed that the agency discriminated against her in reprisal for prior protected activity when:
(1) (a) on July 25, 2007, she learned she was not offered, referred nor selected for the position of General Supply Specialist, GS-2001-09, Certificate No. PAC7-GS2001-09-4B647265-C-001 in Code 523;
(1) (b) on December 23, 2007, she learned she was not selected for the position of General Supply Specialist, GS-2001-07 target GS-2001-09, Certificate No. PAC7-GS2001-07-4B815567-C-00, in Code 523;
(1) (c) on January 21, 2008, she learned she was not selected for the position of General Supply Specialist, GS-2001-09, Certificate No. PAC7-GS2001-09-4B815567-C-00, in Code 523;
(1) (d) on March 16, 2008, she learned she was not referred for the position of General Supply Specialist, GS-2001-07 target GS-2001-09, Certificate No. PAC8-GS-2001-07-4B912023-C-28, in Code 523; and
(2) on June 11, 2008, management informed her that the promotion (temporary, not to exceed 120 days) to General Supply Specialist, GS-2001-09, offered to her by the Industrial Support Director on June 10, 2008, had been rescinded.
The agency consolidated the two complaints for investigation. At the conclusion of the investigation, 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 (AJ). In accordance with complainant's request, the agency issued a final decision on March 9, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its March 9, 2009 final decision, the agency found that in regard to claims (1)(b) - (1) (b) and (2), complainant did not establish a prima facie case of reprisal discrimination. The agency further found that even assuming complainant established a prima facie case of reprisal discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
Regarding claim (1)(a), the record reflects that eight applicants were referred to the selecting official (SO) for consideration. Complainant's name was not on the certificate of eligibles. The selecting official (SO) stated that he selected selectee for the position of General Supply Specialist, GS-2001-09, Certificate No. PAC7-GS2001-09-4B647265-C-001 because "he was a hard charger, a very aggressive person. He was working as a Supply Technician and had the ability to ensure compliance with regulations and policies, as his resume demonstrated that. His use of the word 'responsible' in his resume also showed me his level of initiative."
The former Human Resources Specialist (Specialist) stated that complainant was not considered for the subject position because she either had no resume in the system or did not apply for a specific grade level. Specifically, the Specialist stated "it may have been because [complainant] had no resume in the system or she did not apply for the specific grade level."
Regarding claim (1)(b), SO stated that he selected selectee for the position of General Supply Specialist, GS-2001-07 target GS-2001-09, Certificate No. PAC7-GS2001-07-4B815567-C-00 because she was familiar with Electronic Retrograde Management Systems. Specifically, SO stated the subject position "includes handling DLRs, which are Depot Level Repairs. [Selectee] knew about Electronic Retrograde Management Systems (ERMS). She knew all of these programs that showed me she knew how to adapt to change or working with new systems."
The Specialist stated that complainant was not selected for the subject position because "she did not apply at the GS-07 level."
Regarding claim (1)(c), SO stated that he chose the selectee for the position of General Supply Specialist, GS-2001-09, Certificate No. PAC7-GS2001-09-4B815567-C-00 because of her extensive work experience. Specifically, SO stated that selectee used "a lot of strong verbs in her resume that showed her level of initiative. She showed herself to be a self starter, with more than enough customer service skills. She had been a purchase card buyer and that experience was important."
SO stated that he did not select complainant for the subject position because SO determined that she did not stand out from the other applicants. SO stated that in regard to complainant's resume, it did show complainant "had prior experience doing some of the things in that job." SO stated that complainant did not stand out "from the rest as the best fit for the positions we were filling at the time. The resumes for those I selected had the ability to take responsibility, develop themselves, and challenge themselves in the direction we wanted to go. [Complainant's] resume did not come across that way."
Regarding claim (1)(d), SO stated that he chose selectee for the position of General Supply Specialist, GS-2001-07 target GS-2001-09, Certificate No. PAC8-GS-2001-07-4B912023-C-28 because "she showed the ability to work independently. Additionally, she was already a supervisor and had some experience managing for herself."
The Specialist stated that complainant was not referred for the subject position. The Specialist further stated that when applicants apply through the CHART "which is the system we use to fill Department of Navy vacancies, you are notified that it can take up to two days to refresh the CHART database, so that you may be considered. We pulled candidates for the certificate on February 5, 2008, which was the same date her resume was received, as the documents I have reviewed and now submit will show. Therefore she did not apply in time to be considered for this certificate."
Regarding claim (2), SO stated that during the relevant time "we had another project and we had no other Expeditors, I needed [Complainant] and made a verbal offer to her, which she accepted. I had earlier offered that opportunity to another person who declined. All of my Expeditors were involved in other projects, hence the need for a temporary promotion." SO stated, however, he later rescinded complainant's temporary promotion offer because the Lead Expeditor (LE) on the USS Key West Project came back earlier than expected "because that project finished early. I believe it was the USS Columbia Project that we needed [Complainant] on at the time, but there was no need once [LE] came back, since we could then assign him to that project. The same process will be used in other temporary promotions that may come up. [Complainant] will have the same opportunities to be considered for those as anyone else."
Complainant's second-line supervisor (S2) stated that management "noncompetitively selected [named employee (E1)] whose permanent position with us was a GS-06, for a temporary 120-day GS-09 position with the USS Columbia project. When his temporary promotion time expired, we still needed him on that project, so we had to extend the temporary promotion position competitively according to requirements. We announced within Code 500." S2 stated that E1 and complainant were the only two candidates for the new temporary position. S2 stated that the selecting official selected E1 for the subject position. S2 stated, however, E1 was offered a different permanent position which he accepted. S2 stated that S1 then offered complainant the subject position at the GS-9 level. S2 stated "as soon as that happened, though, [LE] came back to us earlier than we expected from USS Key West Project. Since he was already working in the series in a permanent GS-07, target GS-09 position, we could no longer justify temporarily promoting [complainant], so we had to explain that to her. She seemed to understand that at the time."
The Specialist stated while she had no knowledge concerning the rescission of complainant's temporary promotion to the position of General Supply Specialist, it is possible for management "to rescind such an offer. There are no restrictions in management "either offering or rescinding a temporary promotion action under those circumstances."
On appeal, complainant argues that the agency did not follow their procedures concerning Reduction-in-Force (RIF) and promotions. Complainant argues that she applied for the position of General Supply Specialist, GS-2001-09 (claim (1)(a)) and that her name "was not on the certification because the agency changed the requirements for the job from a GS-2001-09 to a GS-2001-07/09." Complainant further argues that "as an employee subjected to save grade and save pay because of a RIF, I feel that the agency should consider priority consideration a position equal to my pay and grade." Complainant argues that in regard to claim (2), there was "no business reason for management to rescind the offer. At this time I was told by management that I should cancel my EEO complaint."
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. We further find that complainant has not demonstrated that these reasons were a pretext for discrimination.
Complainant, on appeal, has not provided any persuasive argument regarding the propriety of the agency's finding of no discrimination. The Commission determines that the agency conducted a thorough investigation, and its finding of no discrimination is supported by the record.
Therefore, 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).
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
September 25, 2009
__________________
Date
2
0120091996
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091996
7
0120091996