[Redacted], Jolene P., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 16, 2022

Appeal No. 2021004860 (E.E.O.C. Mar. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jolene P.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021004860 Agency No. DON 21-62473-00601 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated March 8, 2021, dismissing a formal complaint alleging 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. BACKGROUND Complainant began working for the Agency in the 1990s as a Contract Specialist. In 2010, the Agency promoted Complainant to Supervisory Contract Specialist, Grade GS-13. In 2014, Complainant then accepted a promotion to GS-14, at the Naval Facilities Institute. During the period at issue, Complainant worked as a Procurement Analyst, GS-14, at the Agency’s Naval Facilities Engineering Command in San Diego, California. On June 28, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race (Mexican) and sex (female) when: a) Between April 2010 through December 2014, Complainant claimed that her position description of Supervisory Contract Specialist, GS-13 was not properly classified. 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 2021004860 b) Between 10 June 2020 through 16 February 2021, Complainant claimed that senior-level positions inappropriately or arbitrarily required an engineering degree which acts as a retention strategy, in which male candidates are dominantly referred, and Complainant was not allowed to apply for those positions. The Agency dismissed the entire formal complaint. Regarding Claim (a), the Agency determined the claim should be dismissed, pursuant to 29 C.F.R. § 1614.107(a)(3), because Complainant had already pursued the same claim in a United States District Court. The Agency dismissed Claim (b), for failure to state a claim under 29 C.F.R. § 1614.107(a)(1). The instant appeal followed. On appeal, Complainant states that requiring an engineering degree for positions within Naval Facilities Engineering Command is not a business necessity and that doing so has a disparate impact on women and people of color, since those with engineering degrees are often Caucasian males. According to Complainant, the highest-ranking civilian positions are occupied by men in 68 out of 84 Naval Facilities Engineering Command offices. Complainant contends the gender and racial disparities among Naval Facilities Engineering Command highest ranking civilian positions supports her position that the Agency’s qualification decisions have subjected her to ongoing discrimination. ANALYSIS AND FINDINGS Claim (a): Same Claim Pending in United States District Court EEOC Regulation found at 29 C.F.R. “§ 1614.107(a)(3) provides for an agency to dismiss a formal complaint that is the basis of a pending action in a United States District Court. Commission regulations provide for the dismissal of an EEO complaint under such circumstances to prevent a complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. Priscilla H. v. Dep’t of the Interior, EEOC Appeal No. 0120152148 (Oct. 24, 2016). We conclude that Claim (a) asserts the sane matters that Complainant raised in a civil action at United States District Court of Southern California. On July 23, 2019, the District Court Judge dismissed this claim and others after he determined that Complainant could not establish her prima facie case of disparate treatment. See Complainant v. Dep't of the Navy, United States District Court, S.D. California, Case #16-CV-02299-AJB-AGS, 2019 WL 3306293. Therefore, we find that the Claim (a) was properly dismissed in accordance with 29 C.F.R. § 1614.107(a)(3). 3 2021004860 Claim (b): Failure to State a Claim Under 29 C.F.R. §§ 1614.103, 1614.106(a), the Agency shall accept a complaint from an aggrieved employee or applicant who believes that she has been discriminated against by that agency because of race or national origin, age or other protected status. The Commission's federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Complaints should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle him or her to relief. In determining whether a complaint states a claim, the proper inquiry is whether the alleged conduct would constitute an unlawful employment practice under EEO statutes. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Upon review, the Commission finds that the Agency also properly dismissed Claim (b) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Generally, if Complainant failed to apply for promotion positions at issue, she cannot then claim discriminatory non-selection unless she alleges that the Agency discouraged her from applying, utilized an informal/secretive selection process, or took other affirmative steps to harm her candidacy. Fuester v. Ofc. of Personnel Mgmt., EEOC Request No. 05910751 (Jan. 21, 1992) (where there is a failure to actually file an application, Complainant may show that she was aggrieved if evidence exists which demonstrates she was discouraged or deterred from applying); Paul v. Dep't of Def., EEOC Appeal No. 01923043 (Nov. 3, 1992) (holding that a complainant, who did not apply for the position at issue was not aggrieved when the agency failed to select her), req. for recon. den., EEOC Request No. 05930293 (July 30, 1993); Delgrego v. U.S. Postal Serv., EEOC Appeal No. 01A45369 (Nov. 18, 2004) (holding that a complainant who fails to apply for a position may nevertheless state a claim if she alleges that the Agency discouraged her from applying or used a secretive application or selection processes).” It is undisputed that Complainant did not apply for the positions at issue. While Complainant argues that she did not apply because she did not meet the engineering degree requirement, we do not find that this requirement alone was sufficient to indicate that the Agency actively intended to discourage Complainant in particular from applying for the positions in question. The Agency properly dismissed Claim (b) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 4 2021004860 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). 5 2021004860 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 March 16, 2022 Date