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

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2020003290 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Katharine B.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020003290 Agency No. 19-67400-04159 DECISION On April 27, 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 March 30, 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 a Hotel Manager, NF- 117304, with the Marine Corps Installation Pacific at the Marine Corps Base Camp in Butler, Japan. On March 6, 2019, Complainant sent an email to the Assistant Chief of Staff, Corps Community Services (MCCS) Okinawa, stating she heard the Lodging Program Manager (LPM1) had decided to retire and requested to be considered for any upcoming vacancies because she wanted to return to Okinawa. The Assistant Chief of Staff informed her she was welcome to compete. 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. 2020003290 2 On June 26, 2019, the Agency posted a job announcement for the position of Lodging Program Manager (LPM) (Job ID: 38551), Lodge Program, Camp Foster, in Okinawa, Japan for internal MCCS candidates only. Since the job announcement was for internal candidates only, Complainant did not apply for the position and was not selected for the position. The selecting official for the position was the Retail Program Manager who selected the best qualified internal candidate (LPM2) to fill the position. Complainant believed the decision to restrict the area of consideration to internal candidates for the LPM position in 2019 was made to prevent her from applying for the position as the position had previously been announced to internal and external candidates in 1998 and 2017. As noted, Complainant had previously applied for the LPM position in 2017 (Job ID: 25869). No selection was made, and the job announcement was cancelled on July 5, 2017 after interviews had been conducted. Complainant was notified of her non-selection on July 6, 2017. The position was filled when the Chief Business Officer non-competitively reassigned LPM1 back into his previous role as LPM. LPM1 was the Chief of Retail when the position became available and he had requested to be reassigned back to LPM, a position he had held with outstanding results within the previous 12 months. On July 2, 2019, Complainant sent an email to a retired MCCS coworker (CW), asking for information about her non-selection for the LPM position in 2017 (Job ID: 25869). CW replied, stating he had asked LPM1 about Complainant not being selected for the LPM position and LPM1 informed CW that he felt the Executive Branch did not want Complainant because she pushed back on different issues and that the Director, Operations Assurance (Director) believed Complainant and CW did not sell alcohol at their front desk because of their Christian values. On July 18, 2019, the Agency posted a job announcement for Assistant Lodging Program Manager (Job ID: 38971) with the MCCS Okinawa Japan. Complainant submitted her application and she was one of the nine applicants determined to be qualified and referred for interviews out of 82 total applicants. On September 9, 2019, she was interviewed by three panel members, including LPM2, who was the selecting official for the position. On November 25, 2019, the Agency informed Complainant that she was not selected for the Assistant Lodging Program Manager (Job ID: 38971) position. On September 4, 2019 (and later amended), Complainant filed a formal complaint alleging that she was subjected to discrimination by the Agency on the bases of race (African-American), color (Black), national origin (African-American), sex (female), religion (Christian), age (YOB:1963), and in reprisal for prior protected EEO activity when: 1. On or about July 1, 2019, the job announcement for the Lodging Program Manager (Job ID: 38551) was made for internal candidates only, effectively excluding her from eligibility; 2020003290 3 2. On or about July 2, 2019, she became aware via email from a former MCCS employee that the reason for her non-selection for the Lodging Program Manager (Job ID: 25869) in 2017 was discriminatory; and 3. On November 25, 2019, she was not selected for the Assistant Lodging Program Manager (Job ID: 38971) with the MCCS Okinawa Japan. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a final Agency decision (FAD). In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In the FAD, the Agency determined that management articulated legitimate, nondiscriminatory reasons for its actions. Specifically, in Claim 1, the Agency’s limitation of applicants to internal MCCS candidates in its vacancy announcement for the position of LPM (Job ID: 38551) in 2019 was made to further the Agency’s goal to support organization succession planning and upward mobility opportunities of current employees. Additionally, the decision was further supported because MCCS had employees with the requisite skill, knowledge, and abilities for the job at the time of the vacancy. The Chief of NAF Human Resources (HR Chief) stated the decision was made in accordance with the Agency’s personnel policy manual. The HR Chief explained that MCCS Okinawa received a policy interpretation from the Headquarters Human Resources team in February 2019, allowing internal recruitment to assist career path progression of MCCS employees. MCCS Okinawa had been unaware of this provision and after receiving written confirmation from Headquarters of the policy, the vacancy announcement for Lodging Program Manager (Job ID: 38551) was the first time it was used. The Retail Program Manager, the selecting official for the position, stated the selected applicant (LPM2) was the most qualified for the position and he had no knowledge of Complainant’s interest in the position. Pertaining to Complainant’s non-selection in Claim 2, the HR Chief explained that it was not unusual for a selection not to be made for a position. LPM1 received a reassignment back into the LPM position based on having the necessary qualifications and holding the same level position. Further, reassigning LPM1 saved the Agency money and time and his experience resulted in continued and expanded financial success of the program. The decision to reassign LPM1 occurred after the Agency had interviewed candidates for the position, but before a selection was made and resulted in cancelling the vacancy announcement. Additionally, the Director stated he was not part of the hiring process for the 2017 LPM (Job ID: 25869) vacancy announcement. He explained that on October 8, 2017, he discussed with LPM1 that LPM1 was restricting alcohol sales at the Westpac Lodge in a manner that did not follow MCCS Lodging Policy. LPM1 acknowledged the mistake and adjusted how alcohol was sold to comply with the policy. The Director averred the conversation did not involve Complainant or her religious values. 2020003290 4 With respect to Claim 3, LPM2 was the selecting official for the Assistant Lodging Program Manager position and the decision was made in concurrence with the Retail Program Manager and the Deputy Director (Business and Support). Nine of 82 total applicants were determined to be minimally qualified and referred for interviews. The panel interviewed and scored each candidate individually. LMP2 stated the panel unanimously agreed on the highest rated candidate, who was selected for the position (ALPM-Selectee). LPM2 stated ALPM-Selectee’s selection and high ranking was due to her deep involvement with the creation of databases and the execution and future roll-out of a new property management system essential to the success of the MCCS Lodging program. Even though Complainant held a higher-level position as LPM for 18 years, LPM2 stated the Lodging Program had evolved since 2015. He cited ALPM- Selectee was more qualified because she had current experience with the Inns of the Corps lodging program, its brand development, branding standards, current operating procedures and forthcoming property management software, and relevant work experience in the private hotel sector. The Agency concluded Complainant failed to show management’s legitimate explanations were pretextual. As a result, the Agency found that Complainant had not been subjected to discrimination or reprisal as alleged. The instant appeal 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 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 2020003290 5 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). In the instant case, assuming arguendo that Complainant established a prima facie case of reprisal and race, color, national origin, sex, religion, and age discrimination, the Commission finds that Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. With regard to Claim 1, as detailed above, the Agency had recently learned from Headquarters that they could announce a vacancy and limit the initial area of consideration to internal candidates to assist career path progression of MCCS employees. The HR Chief explained the business decision regarding the area of consideration for an individual job vacancy announcement, i.e. internal MCCS candidates or external, is based upon the facts and circumstances that exist at the time of each job announcement. One item of consideration is whether there are sufficient internal candidates with the requisite knowledge, skills and abilities for the job at the time of the vacancy, which was the case here. The Director, NAD Human Resources affirmed these statements, explaining it allowed for career progression and is ultimately a cost saving decision for the organization. Ultimately, the internal selectee was determined to be the best qualified based on his experience in the hotel business and successful service as the Assistant MCCS Lodging Program Manager, As to Claim 2, the announcement was cancelled, and the position was filled following LPM1’s reassignment to the position. LPM1 had previously held the position and performed an outstanding job and his reassignment into the position allowed the Agency to save money and time. As discussed above, the Director denied making any comments or references to Complainant’s religion; rather, he affirmed he simply discussed and clarified the alcohol sales policy with LPM1. Finally, regarding Claim 3, the interview panel unanimously recommended ALPM-Selectee as the best qualified for the position based on her top interview score of 64 points. The Hiring Selection and Non-Selection Justification for Assistant Lodging Program Manager Memorandum from LMP2 states that the interview panel ranked Complainant tied with another applicant with 40 points. Additionally, LMP2 noted ALPM-Selectee’s extensive and broad hotel and lodging experience, quick career development, and her detailed knowledge of the fundamentals of the Agency’s new property management system set her apart from other candidates. LMP2 acknowledged Complainant’s vast lodging experience; however, he stated that she portrayed herself as an executive providing staff with direction, rather than a team member who would be able to work alongside the team to accomplish tasks and projects and failed to provide satisfactory answers to some interview questions. As a result, ALPM-Selectee was chosen for the position as the best qualified candidate. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. 2020003290 6 We note that Complainant chose not to request a hearing; therefore, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing and can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's selection decisions. In particular, with respect to Claim 3, Complainant failed to show that her qualifications for the position were plainly superior to those of the selectee. In this case, the selectee had attributes that justified her selection, and the selection officials affirmed that they believed ALPM-Selectee was better equipped to meet the Agency's needs. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. While Complainant believes that she was more qualified based on her overall experience, the Commission notes that number of years of experience, alone, is insufficient to establish that a candidate's qualifications are observably superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011). Furthermore, to the extent that Complainant believes that preselection occurred in any of the positions at issue, we note that Complainant has not shown that any such preselection was motivated by discriminatory or retaliatory animus. Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, it is the decision of the Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2020003290 7 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). 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. 2020003290 8 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 June 3, 2021 Date