[Redacted], Anglea R., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Feb 14, 2022

Appeal No. 2020005476 (E.E.O.C. Feb. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anglea R.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice, Agency. Appeal No. 2020005476 Agency No. USA-2019-00617 DECISION On September 28, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 1, 2020, final decision 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Services Technician, GS-8, at the Agency’s Southern District of Alabama U.S. Attorney’s Office, in Mobile, Alabama. On August 19, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (57) when: 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. 2020005476 2 1. Since October 2017, she was required to perform the duties of a Contract Specialist in addition to her regular duties without receiving any additional pay; and 2. On or about March 27, 2019, she learned that she was ineligible and not selected for a Contract Specialist (18-ALS-10308342-MS) position because the U.S. Attorney’s Office management posted the position at the GS-11/12 level instead of the GS-9 level. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that, assuming Complainant established a prima facie case of discrimination, management provided a legitimate, nondiscriminatory reason for each claim. Specifically, the Agency noted that Complainant’s supervisor, the Deputy Administrative Officer (AO), explained that after the former Contract Specialist (CS) retired, Complainant took over some of the CS’s duties because, at the time, Complainant was the only warranted contract officer in the district who could write a contract. See Report of Investigation (ROI) at 132. The AO further explained that as a small office, it was common practice for other employees in the office to handle additional duties when someone retired or was on extended leave. See ROI at 133-34. With regard to Claim 2, AO stated that management decided to list the new Contract Specialist position at the GS 11/12 level because it was important not to downgrade the position and they wanted to attract the most qualified candidates, considering the best interests of the office and the requirements of the position. See ROI at 154-55, 160-61. The Agency also found that Complainant did not establish that the proffered reasons were a pretext for discrimination and therefore concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that the instant claims are part of a continuing pattern of Agency violations of the merit system principles laid out in 5 U.S.C. § 2301, including the failure to properly classify her in the appropriate job series when she was hired and later advance her in accordance with her performance. Additionally, Complainant argues that the Agency failed to properly consider her veteran status in denying her advancement and a promotion.2 2 To the extent Complainant seeks to challenge the Agency’s actions in hiring and advancement as violations of merit systems principles and veteran preference requirements, the Commission does not have jurisdiction over such claims. See 29 C.F.R. § 1614.103(a); see also Montgomery- Resendiz v. Dep’t of Health and Human Srvcs., EEOC Appeal No. 01991339 (Jan. 31, 2001). 2020005476 3 She further asserts that the reasons provided by management are not credible and are a pretext for discrimination. In response, the Agency first contends that Complainant impermissibly raised new claims and submitted new evidence on appeal.3 The Agency maintains that it properly concluded that it established legitimate, nondiscriminatory reasons for its actions and Complainant has not provided any evidence to support her assertions of pretext. ANALYSIS AND FINDINGS As 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 de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case 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 Dep’t of Cmty. 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). 3 On appeal, Complainant submits an additional signed declaration and copies of her performance appraisals going back to 2008. As a general rule, the Commission will not consider new evidence on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. Equal Employment Opportunity Management Directive for 29 CFR Part 1614 (EEO MD-110), at Ch. 9, § VI.A. (Aug. 5, 2015); see also, Federal Sector Equal Employment Opportunity, 64 Fed. Reg. 37,654 (July 12, 1999) (“[N]o new evidence will be considered on appeal unless the evidence was not reasonably available during the hearing process”). Complainant has not made such showing here, therefore the additional evidence will not be considered on appeal. 2020005476 4 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8. 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We find that the Agency offered legitimate, nondiscriminatory reasons for each of Complainant’s claims. With respect to Claim 1, the AO explained that at the time of the former CS’s retirement, the office was in the process of transitioning to a new financial management system. See ROI at 128. She further stated that the former CS and Complainant worked together on the transition process so that after the CS’s departure, Complainant was the only warranted contract officer available to write a contract. See ROI at 128-129, 132. Both the AO and Complainant’s second-line supervisor (S2) stated that because it was a small office, it was common practice for other employees to temporarily take on additional duties when an employee was on extended leave or during a vacancy. See ROI at 191-92; 250-52. In addition, the evidence in the record reflects that Complainant received recognition for taking on these additional duties, in the form of a grade increase to a GS-8, a Quality Step Increase, a cash performance award, and additional time off. See ROI at 65-66, 71, 250, 256. Complainant contends that she should have been promoted to a GS-9 based on the additional contracting duties she was performing. The AO explained that the office is limited in the number of positions and grades that were available, and there simply was no GS-9 position available. See ROI at 142-44, 147. In addition, a Human Resources Specialist testified that, at Complainant’s request, she performed a desk audit to determine if Complainant’s duties were appropriate for her grade level. According to the HR Specialist, Complainant told her that she did not perform the independent contracting duties generally performed by Contract Specialists, and only assisted others with those duties. See ROI at 340. The HR Specialist attested that Complainant chose to discontinue the desk audit, which S2 confirmed, noting that, to her knowledge, Complainant asked to discontinue the desk audit when she realized the audit was likely going to determine that the GS-8 grade level was appropriate for her duties. See ROI at 263, 340. With respect to Claim 2, Complainant contends that she asked management to announce the Contract Specialist position at the GS-9 level so she could apply. She believes that management could have promoted her to a GS-9, allowing her to qualify for the Contract Specialist position at the GS-11 level, but that they “wanted to make sure they kept me where I was not able to be promoted for the job.” See ROI at 75, 99. 2020005476 5 The AO explained that in 2016, the Justice Management Division told the Executive Office of U.S. Attorneys that they would be requiring FAC-C certifications for any contracting officers, which entailed additional education and training. See ROI at 135-36. When the former CS retired, management determined that the Contract Specialist position should be kept at the GS-11 level, in light of the FAC-C certification requirement and in order to attract the most qualified candidates. See ROI at 154-55. S2 further explained that the decision to classify the position at the GS-11 level was made after consulting with an HR classification expert, because management felt they needed the expertise of a person operating at the higher grade level of a GS-11. See ROI at 274, 276-77. The U.S. Attorney agreed and stated that management “didn’t want to lower the standards just so [Complainant] could get the position”, and ultimately, management “disagreed with [Complainant] in the end about how we should handle this position.” See ROI at 301. As the Agency has articulated legitimate, nondiscriminatory reason for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). We find that Complainant did not establish that the Agency’s actions were a pretext for discrimination. To begin with, Complainant’s assertions that management treated white employees more favorably by announcing positions in a way that ensured that certain white employees were qualified and could be selected for promotion are not supported by the record. The AO explained that in one case, the office received a specially allocated Paralegal Specialist position and in another, a new supervisory legal assistant position was created due to office restructuring implemented to address the needs of the office. See ROI at 149-50. Both new positions were competitive, and two employees were selected as a result of the competitive process. See id. There is no evidence in the record that these new positions were deliberately created in order to promote white employees. Moreover, the Commission has long held that agencies have broad discretion to carry out personnel decisions and should not be second- guessed by the reviewing authority absent evidence of unlawful motivation. See Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). The only support in the record for Complainant’s assertions of pretext is a Human Resources Officer’s opinion, that announcing the position in a way that prevented the individual who had been asked to perform the position’s duties from being considered was “questionable to me.” ROI at 208. 2020005476 6 He acknowledged, however, that the office has the “flexibility to determine what we feel like is a best fit or best role for our office,” and admitted he did not know if any discriminatory animus motivated management in deciding to classify the Contract Specialist position at the GS-11 level. See ROI at 205. It is well established that mere disagreement with an Agency’s actions is not sufficient to establish pretext. The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. See Ambrose M. v. Dep’t of the Air Force, EEOC Appeal No. 0120180225 (June 11, 2019). There is no evidence in the record to support Complainant’s assertion that management’s reasons for its actions was “prejudice.” See ROI at 86. We therefore find that Complainant did not establish that the Agency’s reasons for its actions was a pretext for discrimination CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision, finding that Complainant did not establish that she was discriminated against as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2020005476 7 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (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. 2020005476 8 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 February 14, 2022 Date