[Redacted], Ashlee P., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity Commission

Sep 16, 2021

Appeal No. 2020002184 (E.E.O.C. Sep. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ashlee P.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency. Appeal No. 2020002184 Agency No. DCAA-CASE-RG19-001 DECISION On January 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 January 8, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Auditor, GS-0511- 07, at the Agency’s RGB CAD Raytheon Integrated Defense Systems Resident Office facility in Andover, Massachusetts. On January 7, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (hearing loss and tinnitus), and age (59) when: 1. During January 2018, Complainant's first-level supervisor, (S1: female, no claimed disability, 40 years old) denied Complainant’s request for a coach; 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. 2020002184 2 2. During June 2018, the Resident Audit Manager (RAM: female, 52 years, no claimed disability) denied Complainant's request to transfer to another office as a reasonable accommodation; 3. During June 2018, RAM treated Complainant dismissively after she asked for assistance from her in establishing good communication with S1; 4. On July 3, 2018, S1 issued Complainant a Progress Review with a rating of "Needs Improvement;" 5. On July 19, 2018, S1 issued Complainant a 10-month Probationary/Trial Period Evaluation Report with a rating of "Unsatisfactory;" and 6. On August 15, 2018, S1 denied Complainant’s promotion to Auditor, GS-0511- 09. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency’s decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD first found that Complainant’s EEO counselor contact with regard to claims 1 through 5 was untimely for purposes of addressing them as individual claims. The FAD further found, however, that such claims could be included in an overall claim of hostile work environment. With regard to claim 6, the FAD found that Complainant failed to establish a prima facie case because she failed to identify otherwise similarly situated comparators outside of her protected classes who were promoted after being rated less than “fully successful.” The FAD further found that, assuming Complainant established a prima facie case, the Agency articulated a legitimate nondiscriminatory reason for its action, namely that Complainant was ineligible for promotion because of her less-than “fully successful” rating. The FAD found that Complainant failed to establish that the Agency’s articulated reason was a pretext. With regard to hostile work environment, the FAD found that the actions alleged were insufficiently severe and/or pervasive to constitute harassment and that they neither involved nor were they based on Complainant’s protected bases. The instant appeal from Complainant followed. 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 2020002184 3 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Timeliness of EEO Counselor Contact EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The United States Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act fells within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). The Court further held, however, that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. at 113. “Each discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. The Court defined such “discrete discriminatory acts” to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Morgan at 114. However, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. See Morgan at 117. The record shows that Complainant’s first EEO Counselor contact occurred on October 1, 2018. As such, the only timely-raised discrete act is claim 6, the denial of promotion. The remaining acts consist of either the untimely-raised discrete act (claim 2, the denial of reasonable accommodation) or the remaining non-discrete acts. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Disparate Treatment Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. 2020002184 4 This established order of analysis 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, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination. We next find that the Agency articulated a legitimate nondiscriminatory reason for denying Complainant’s promotion. S1 averred that Complainant: [W]as eligible for non-competitive promotion to GS-9. I discussed with her promotions are not guaranteed, you have to meet the standards. [Complainant] received a less than fully successful rating so was not promoted to GS-9. There is no decision, it is never a guarantee. You are either fully successful, and would generally receive the promotion. I did not do anything to stop the promotion. I believe the process is that if she was eligible, I would contact HR and the promotion would go through. The difference is, with a step increase it is automatic, a supervisor has to actually stop that action. The promotion is not automatic, and would have had to have been initiated. [Complainant was not promoted] because her performance as a GS-7 was not fully successful. RAM’s testimony similarly stated that Complainant was not promoted because “she did not demonstrate full performance as a GS-7. The memorandum to Complainant explaining why she was not promoted was written by RAM and stated: This memorandum documents your discussion with your supervisor held on August 15, 2018 and provides written notice that your career ladder promotion to GS-0511-07 position will be delayed since you currently have not met all the requirements for promotion. You were scheduled to be eligible for promotion to GS-07 Senior Auditor on August 19, 2018; however your current performance indicates that you need additional time to be able to demonstrate that you can successfully satisfy all of the critical elements and performance standards of the next higher position. Specifically, you must demonstrate your ability to be able to perform an audit independently after obtaining basic initial supervisory guidance. You must be able to independently identify deficiencies and/or noncompliances and objectively make audit determinations and appropriate recommendations which demonstrate sound auditor judgment before we can promote you to the next higher position. The following actions are required. Generally, you must: • Prepare working papers that clearly indicate the audit work/steps performed and the conclusion drawn. • Ensure that your notes sufficiently explains [sic] the basis for the audit determinations made and are supported by adequate evidentiary documentation. 2020002184 5 • Ensure that all audit steps performed are complete and clearly address the objective. • Research and apply Government regulation (i.e., CAM & FAR) to support the conclusions drawn. • Identify audit deficiencies and/or noncompliances and ensure that you develop/document how to address or not address based on auditor judgment. In order to facilitate a clear demonstration of your abilities, you will work on the Simulation Technologies multi-year (2016/2017) incurred cost audit during the next 90 days. This will give you the opportunity to demonstrate your improvements in the areas listed above. We will meet once a week to discuss the status of your audit. Any uncontrollable delays should be communicated to the supervisor immediately. Once you demonstrate your ability to perform at the next higher level, we will hold a discussion again, and consider your eligibility for promotion to GS-12 Senior Auditor. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. Complainant averred that she disagreed with the reason provided by the Agency, stating that “I was meeting the standards. I was also showing improvement in my CJEs [sic] and was advised by [S1] I have the research skills down and just need to improve on writing the workpapers.” With regard to her performance appraisal, Complainant averred that she believed she was entitled to a higher rating because: I was showing improvement. I was also a new employee and was constantly advised at training in DCAI it takes an average of 3 yrs to really get to know your job. My supervisor also constantly advised me that Raytheon was a very complex contractor and if I had been at an office such as Lowell I would not have such a well-rounded and complex audit experience. Yet they are the grade/series/rating level. . . . As a new hire, I believe I met those standards, and went over and above them. There were a couple of instances where a contractor told me “good catch” for issues I found. I was told “good work” and I took over an audit when the Lead Auditor went out sick. None of the good I did was in here. On appeal, Complainant argues that S1 and RAM perjured themselves and hence their testimony is not credible. Complainant provided examples such as S1 “in one statement [saying] my request for a coach in August was verbal and then she stated it was via email” and further that: 2020002184 6 [D]ispute the statement by S1 there was never any "discussion" regarding this matter. To my recollection, she called me in to her office, immediately advised me she was issuing an interim appraisal to block my [Within Grade Increase] as was advised by HR, and proceeded to read what was written on the report. I do not consider that a discussion, but continued prohibited discrimination for my gender, age and disability. . . . I dispute the response by [S1] stating there is no decision to be made by a person regarding promotion and that it is automatic. Yes it is based on performance and somewhat automatic, but that feeds down from a supervisor providing the proper training, feedback, guidance, support, means to succeed, tools and accommodations for the employee to perform their job to the fullest. I also questioned the issue of my probationary period, which to my knowledge has never been resolved and remains a major factor in this matter and the steps taken or not taken by management. There appears to be conflicting statements made both in the interviews as well as verbal discussion with both [S1] and [RAM] regarding the contact and involvement of HR and more specifically [_______] (name omitted) in this matter as a whole. When I was presented with the Proposal for Removal I attempted to address the matter of my probationary period and subsequent actions taken by management with [RAM]. Her response was that [S1] would have contacted HR for guidance. I believe [S1]'s interview offers conflicting and therefore not credible statements saying she did and did not contact HR regarding the issue in question. In regards to [S1]'s statement regarding my allegation that incidents 1-6 were motivated by sex, age and medical condition and her response disagreeing and that it was based on performance I believe her response like some others circumvents the question. The motivation by both [S1] and [RAM] to have me removed based on unfounded performance issues, like the two previous employees is clearly prohibited discrimination. . . . I know it is hearsay, but there is another employee that was told by another supervisor that [the facility] wanted to hire new employees right out of college. My supervisor attended a job show at the Tsongas Arena in Lowell I believe in June 2018, which I believe to be their attempts at achieving this goal. I was also privy to information there has since been two new employees hired for the Andover location fitting this profile since that time. . . . In regards to [S1]’s statement regard my probationary period and SF-50 I believe this should be considered to be not credible and considered further cover up for prohibited discrimination by [S1] and [RAM]. My interpretation of her response is that she was not involved in the matter, I did attempt to address it with her direct [sic] but instead went to . . . HR. I attempted to address this matter with both [S1] and [RAM] in the process of my removal and specifically in the steps and reports they were issuing for unfounded and alleged performance issues. 2020002184 7 In regards to the matter of me being denied my promotion to Auditor, GS-0511- 09 I truly believe the evidence submitted as well as the interviews submitted by [S1] and [RAM] clearly show the level of prohibited discrimination and how both [of them] implemented their strategy over the course of time in the assertions of performance issues. Given the conflicting timeframes and involvement by . . . HR I believe she was also involved in the discriminatory actions of [S1] and [RAM] in ensuring my failure as an auditor with DCAA. The manner in which they issued the Interim Appraisal also did not allow my employee input as documented in evidence submitted. That fact that [S1] told me she issued the Interim Appraisal for the sole reason of blocking my promotion as well as [RAM] sending me the following email show the extent of discrimination they were willing to go to remove me from service. I believe the email issued by [RAM] to be completely uncalled for, unprofessional, discriminatory and pure harassment. Complainant submitted a copy of the following email from RAM to herself which stated: Hi [Complainant’s name], I was just signing off on your performance plan before I left for vacation. I just wanted to make sure you are aware since your performance was rated unsatisfactory you will not be eligible for a WIGI or a promotion until your performance reaches a satisfactory level. Any questions regarding this please contact [_____], HR representative.” We find that the alleged inconsistent management testimony is generally immaterial to the issue of discrimination and/or merely reflects Complainant’s disagreement with the positions or arguments of management officials, but does not show that their testimony is not credible or should be disregarded. Following a review of the record we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that the Agency’s articulated reason for its action is a pretext, or that the Agency’s action was motivated by discriminatory animus or retaliatory motive. Hostile Work Environment We note initially that, to the extent that Complainant is alleging that she was subjected to a hostile work environment when she was denied a promotion, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes such a claim must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such a claim is precluded based on our finding that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). 2020002184 8 Complainant claims the following acts of harassment occurred: S1 denied Complainant’s request for a coach; RAM denied Complainant's request to transfer to another office as a reasonable accommodation; RAM treated Complainant dismissively after she asked for assistance from her in establishing good communication with S1; S1 issued Complainant a Progress Review with a rating of "Needs Improvement;" and S1 issued Complainant a 10-month Probationary/Trial Period Evaluation Report with a rating of "Unsatisfactory. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, to prove his harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her sex, disability or age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Following a review of the record we find that Complainant has not shown that the actions alleged either involved or were based on her protected classes. Nor do we find that the actions were sufficiently severe and/or pervasive so as to alter the conditions of Complainant’s employment. While Complainant feels that the Agency’s actions generally were unfair, she has not shown that they were based on discrimination or reprisal. With regard to Complainant’s argument that the FAD did not address any of the evidence she submitted, we note that Complainant declined to request a hearing before an AJ which would have provided her an opportunity to present evidence and have it be considered by an adjudicator. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown, by a preponderance of the evidence, that discrimination or reprisal occurred, and we AFFIRM the FAD. 2020002184 9 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 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). 2020002184 10 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 September 16, 2021 Date