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

Equal Employment Opportunity Commission

Sep 13, 2021

Appeal No. 2020003750 (E.E.O.C. Sep. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elizabeth F.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency. Appeal No. 2020003750 Agency No. DCAA-CASE-FD19-005 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 18, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Auditor, GS-0511- 11, at the Agency’s Central Florida Branch Office in Melbourne, Florida. On October 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on race (African-American), national origin (Jamaican), sex (female), and color (black)2 when, on January 28, 2019, she was denied promotion to Auditor, GS-0511-12, by her first-level supervisor (S1), Supervisory Auditor, GS-0511-13, and second- 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 The complaint also contained an allegation of discrimination based on Complainant’s age, but Complainant subsequently withdrew the age allegation during the investigation. 2020003750 2 level supervisor (S2), Branch Manager, GS-0511-14, who required Complainant to complete a two-year probationary period prior to being promoted. 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. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency found that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency concluded that it had articulated a legitimate, nondiscriminatory reason for not promoting Complainant to the GS-12 level after one year of employment-namely, that Complainant’s job performance required improvement for her to be eligible for promotion to GS-12. On December 7, 2018, Complainant emailed S1: “It’s coming up to my one year with the agency next month. Just a reminder, I am due for my GS 12 promotion and want to know if I need to do anything to get the process of the paper work started.” In response, S1 replied, “for the GS 12 career level promotion, it is not a given or automatic, nor are promotions to any level. . . . Promotions are at management’s discretion whether an employee is ‘ready’ for promotion, which put another way is if an employee has demonstrated the ability to perform at ‘fully successful’ at the next highest grade.” S1 also included excerpts from the Agency’s Performance Management Manual regarding career promotions and told Complainant that S1 would “assist you to gain experience and further develop your audit skills so that career promotion can occur in the shortest possible time.” The next month, on January 9, 2019, S1 and S2 signed Complainant’s Probationary/Trial Period Evaluation Report for Complainant’s first 10 months of employment. S1 completed the evaluation and found that Complainant “needs improvement” in “Use of Time,” “Judgement,” and “Performance.” She also found Complainant to be “Minimally Successful” in three of the five relevant performance elements. The affidavits of S1 and S2 confirm that their reason for not promoting Complainant after one year of employment was that neither supervisor believed Complainant could have performed at “Fully Successful” for the GS-12 Auditor position at that time. As S2 stated, “I . . . explained to [Complainant] that [at] a GS-12 level the expectations are very high, . . . and based on the discussions and seeing what is going on in the office, she was not meeting those expectation[s]. . . . We did not want to set her up for failure and promote her to a level we believed, based on her performance, she was not ready for because of the higher expectations required at the GS-12 level. The harm, if promoted, would be she would be assessed at GS-12 performance standards in her second year of probation, when she was struggling with performance at the GS-11 standards.” At the start of Complainant’s employment with the Agency, one of Complainant’s coworkers (CW), Senior Auditor, GS-0511-12, was assigned as Complainant’s coach for about six months. CW has been employed at the Agency since 2012. CW’s role as Complainant’s coach was to assist Complainant as a new hire in understanding the Agency’s work and in performing her job. 2020003750 3 In her role as Complainant’s coach, CW observed that Complainant’s performance “was very poor as a GS-11. . . . Every time I explained to her something, using accounting or auditor language, she did not know what that meant. At the time, she was not proficient on computer systems, such as Microsoft Excel, Microsoft Word, and Microsoft Outlook either. In addition, she needed help on spelling and report writing. She would come to meetings unprepared, would not take adequate notes, and did not use the notes she did take as guidance to help with her work.” In CW’s assessment, Complainant’s performance was closer to a GS-7 position. CW voiced some of these concerns to S1 at the time. On appeal, Complainant argues that S1 fabricated her 10-month evaluation in order to “cover up” S1’s discriminatory motive in not promoting Complainant, and that CW lied in her affidavit and harassed Complainant. Complainant further argues that her rating as “Fully Successful” on her annual appraisal for the 2018-2019 performance cycle, completed several months after she was denied her promotion in January 2019, shows that she was ready to be promoted to GS-12 after one year. The record indicates, however, that the 2018-2019 annual appraisal was for Complainant’s position at the GS-11 level; the appraisal does not demonstrate how Complainant would have been evaluated at the GS-12 level. 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”). Assuming Complainant established a prima facie case of discrimination, we find that the Agency provided a legitimate, nondiscriminatory reason for why Complainant was not promoted to the GS-12 level after one year of employment. We also find that Complainant failed to provide persuasive evidence of pretext or otherwise establish that discriminatory animus played a role in this matter. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Complainant’s bare, unsupported assertions are insufficient to prove pretext, or that the Agency’s actions were discriminatory. See Julian L. v. U.S. Postal Serv., EEOC Appeal No. 0120182399, (Mar. 13, 2020). 2020003750 4 CONCLUSION Upon careful review of the evidence of record, including the parties’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. Accordingly, we AFFIRM the Agency’s final decision. 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. 2020003750 5 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. 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 13, 2021 Date