[Redacted], Crysta T., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jul 28, 2021

Appeal No. 2020003492 (E.E.O.C. Jul. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Crysta T.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020003492 Hearing No. 430-2017-00261X Agency No. DON-16-62793-02687 DECISION On May 19, 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 April 30, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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 Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. BACKGROUND During the period at issue, Complainant worked as an Attorney Advisor, GS-0904-14, at the Agency’s SUPSHIPNN (Supervisor of Shipbuilding, Conversion and Repair) facility in Newport News, Virginia. On September 15, 2016, Complainant filed a formal EEO complaint, claiming that the Agency discriminated against her based on sex (female) 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. 2 2020003492 1. On April 7, 2016, she was notified of her non-selection for a GS-0905-15 Counsel position: Supervisor of Shipbuilding, Conversion, and Repair, USN, Newport News (SUPSHIPNN); and 2. On May 12, 2016, the Field Liaison Section Head informed Complainant that she was declining a proposal from Complainant’s client, SUPSHIPNN, to process an accretion of duties promotion as a retention incentive. Following an 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). Complainant timely requested a hearing. Both Complainant and the Agency separately filed motions for summary judgment. The assigned AJ denied Complainant’s December 13, 2019 motion, and granted the Agency’s December 16, 2019 motion for a decision without a hearing. On April 6, 2020, the AJ issued a decision with a hearing, finding no discrimination was proven. The Agency subsequently issued a final order adopting the AJ’s finding. The instant appeal followed. On appeal, Complainant, through counsel, argues that, in comparison to the individual selected for the Counsel position (Selectee) (male), Complainant is the plainly superior candidate. Complainant recites her accomplishments and qualifications, and then compares those to Selectee. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). See also, Anderson, 477 U.S. at 247. We have recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. 3 2020003492 Adah P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates a dispute of material fact necessitating a hearing. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or 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, non-discriminatory 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). The record reflects that each of the four interview panelists, three women and one man, unanimously stated that Selectee had a far better interview than Complainant. In fact, the panelists all commented on how poorly Complainant interviewed and gave details in which of her answers to questions were lacking. On appeal, Complainant argues that the interview panel failed to ask questions about acquisition experience. Complainant also questions the efficacy of the interview panel’s questions and states that the questions were designed for Selectee to perform better than her. Complainant’s mere assertions that she is the plainly superior candidate, and the insistence that her qualifications and no other factors should be considered are in opposition to the Agency’s selection to fill the position. The Agency used not only experience, but the interview process, and all other factors discussed in the record in making its selection for the GS-0905-15 Counsel position. In sum, Complainant has not shown that the alleged disparities in qualifications between herself and the Selectee are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [Selectee] over [her] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). As such, we find that the evidence of record fully supports the AJ’s conclusion that Complainant failed to establish by a preponderance of the evidence that she was discriminated against as she alleged. Regarding Claim 2, the AJ also determined Complainant did not meet her burden by proving that the Agency official chose not to promote her based on Complainant’s sex. Complainant relies on the recommendation of the individual who served in GS-0905-15 Counsel position prior, to establish that she was entitled to that same position. The record demonstrates that the previous GS-0905-15 Counsel recommended Complainant for that position and spoke of how well she worked in her GS-0904-14 position. 4 2020003492 On appeal, Complainant states that a male colleague received an accretion of duties promotion after receiving concurrence from the client, rewriting of the position description, the approval of the rewritten description, a recommendation from the first-line supervisor, and the submission of two writing samples. Complainant goes on to state that after receiving concurrence from the client, and justification from her first-level supervisor that she was performing work at a GS- 0905-15 level, the same steps and accretion duties promotion was not performed for her. However, Agency management witnesses stated that while Complainant may have performed work at the GS-0905-15 level on occasion, she did not routinely perform work at that level that would have entitled her to an accretion duties promotion. The Agency and AJ pointed out that not even her first-line supervisor testified in support of that contention. In sum, Complainant failed to demonstrate that the Agency’s articulated legitimate, non-discriminatory rationale is pretext for discriminatory animus against her, based on her sex. Finally, Complainant argues that, because her successor was paid a higher salary, she was subjected to wage discrimination. The AJ points to the record and a SUPSHIP division reorganization in March 2016, which actually took effect after Complainant September 2016 reassignment, on March 19, 2017. The reorganization resulted in the employees no longer being paid on the GS system, and using the NH system instead. Complainant’s successor was paid NH- IV which encompassed the GS-14 and GS-15 pay scales. The reorganization had an impact upon many positions, and not only Complainant’s position. Complainant fails to demonstrate how SUPSHIP divisions’ reorganization, which took place while she was employed there and she would have benefitted from had she remained in her position, was done to disadvantage or target her, based on her sex. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of no discrimination. 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. 5 2020003492 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). 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. 6 2020003492 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 July 28, 2021 Date