[Redacted], Marine V., 1 Complainant,v.Bill Nelson, Administrator, National Aeronautics and Space Administration (Kennedy Space Center), Agency.

Equal Employment Opportunity Commission

Dec 9, 2021

Appeal No. 2020004301 (E.E.O.C. Dec. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marine V.,1 Complainant, v. Bill Nelson, Administrator, National Aeronautics and Space Administration (Kennedy Space Center), Agency. Appeal No. 2020004301 Agency No. NCN-18-KSC-00034 DECISION On July 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 June 22, 2020, final decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 for a subcontractor as an Independent Assessment Engineer, Level B, at the Agency’s Kennedy Space Center in Kennedy Space Center, Florida. In May 2017, Complainant interviewed for, and was offered, an Independent Assessment Engineer, level B, position on the Safety and Mission Support Services (SMASS) II contract. Appeal File 1 at 350, 352. Complainant was aware when she was hired that the SMASS II contract was in transition to the SMASS III contract. Id. at 353. The SMASS III contract was being protested but was expected to be awarded very soon after she was hired on to the SMASS II contract. Id. at 21. 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. 2020004301 2 Complainant alleged that she was given the impression that she would automatically be hired by the contractor who was awarded the final contract. However, the hiring contractor’s Hiring Agent disputed this, stating that he informed Complainant that the hiring contractor did not win the subcontractor role for SMASS III and they did not know whether any of the hiring contractor’s employees would be hired for SMASS III. Id. at 370. Complainant accepted the position, on or about May 30, 2017. Id. at 20. Complainant alleged that she would not have taken the SMASS II position had she not been given the impression that she would be hired by the contractor who was awarded the SMASS III contract. Id. at 21. In December 2017, the protest was resolved, and Prime Contractor was awarded the contract for SMASS III. On January 4, 2018, Prime Manager of Prime Contractor sent an email to SMASS employees informing SMASS II employees that Prime Contractor had received notice from the Agency that Prime Contractor could begin phase-in for SMASS III. Prime Contractor specified that they had one subcontractor for SMASS III, which was not Complainant’s Hiring Subcontractor, and that all SMASS II employees not employed by Prime Contractor or Awarded Subcontractor must submit an employment application by January 10, 2018, for consideration to join SMASS III team. Id. at 259 (emphasis added). On January 5, 2018, Complainant filed for a position with Prime Contractor to work on the SMASS III contract. She specified that she was applying for an Independent Assessment Engineer or a Safety Engineer position with the SMASS III. Complainant specified that she had a Bachelor of Arts in Psychology and a Master of Science in Safety Studies. Id. at 616-623. Government Standard Labor Categories for engineer positions, as utilized by Prime Contractor for SMASS III, require a Bachelor’s Degree in Engineering or Science. Id. at 631. All engineering positions on the Government Standard Labor Categories require an engineering or science degree. Id. at 631. Complainant was not offered a position with SMASS III. Id. at 22. Complainant alleged that two new hires for the SMASS III project, who were in their 20s, and were treated more favorably than Complainant. Id. at 355. On January 22, 2018, the Hiring Subcontractor issued Complainant a Notice of Layoff. Id. at 230. The reason for Complainant’s layoff, as articulated by the hiring subcontractor, was loss of contract. Id. On April 19, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (61) when, after the SMASS II contract expired, she was not hired onto or otherwise assigned to the successor SMASS III contract, resulting in her being laid off effective January 31, 2018.2 2 The Agency, in its July 27, 2018, FAD, defined Complainant’s complaint only in terms of the layoff. In EEOC Appeal No. 2019000184, we added more detail to better capture her complaint. 2020004301 3 On July 27, 2018, the Agency dismissed Complainant complaint, citing lack of standing. Specifically, the July 2018 FAD found that the Agency did not exercise “supervisory control” over her position and, as such, was not Complainant’s employer for purposes of processing via the Federal EEOC processing. Id. at 242-244. On August 21, 2018, Complainant appealed the July 2018 FAD. In addition to the appeal on the age discrimination claim, Complainant alleged that she was discriminated against based upon disability. Id. at 247. On February 8, 2019, the Commission reversed the Agency’s dismissal of Complainant’s complaint and remanded the issue for investigation, finding that Agency possessed sufficient control over Complainant’s position to qualify as her joint employer for purposes of 29 C.F.R. Part 1614. Marine V. v. Nat’l Aeronautics and Space Admin., EEOC Appeal No. 2019000184 (Feb. 8, 2019). The Commission directed the Agency to inquire, in writing, whether Complainant wished for a claim of discrimination based upon disability to be investigated. On April 3, 2019, pursuant to the Commission’s remand, the Agency accepted Complainant’s claim for investigation. Id. at 293. In their Notice of Acceptance, the Agency specifically requested that, should the Complainant wish to include a complaint of discrimination based on disability, she should notify the Agency. Id. at 344. A review of the record does not demonstrate that Complainant provided such notice or instruction. 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 concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant contends that there were no issues with her performance. She argues that she was not selected to work on SMASS III because the Agency downgraded three positions to college entry-level positions to obtain “fresh ideas.” Complainant further contends that this was confirmed to her by Prime Manager. Complainant asserts that age discrimination did occur because the positions were downgraded in SMASS III. She argues that the reason for the downgrade in positions was not adequately addressed during the investigation. She states that any reason given by the Agency’s representative was “totally bogus.” She supports her statement by asserting that there were no meeting minutes or documents provided as to who was involved in the downgrade in position, why they were downgraded, or any acknowledgment of the impact to the employees. 2020004301 4 Complainant identifies an additional individual, a retired federal employee, whom she had been informed, through hearsay, advised the Agency against lowering the position requirements. She alleges that two people that she requested to be interviewed but were not, would have significant knowledge for the complaint; she states that, while the Agency asserted that they did not have correct contact information, she had found the contact information for these individuals. In its response brief, the Agency contends that, even if these individuals were interviewed, it would not have changed the outcome of the finding of the complaint. The Agency contends that Complainant's claims are insufficient to demonstrate a discriminatory motive behind the Agency's decision to modify the contract requirements under SMASS III which eventually resulted in Complainant's employer laying her off and that she has not established that the Agency's reasons for its action were pretextual to age discrimination. The Agency contends that the changes in requirements from SMASS II to SMASS III were programmatical. Finally, the Agency argues that, even if Complainant’s assertions in her filings are true, they do not show that the Agency’s reason to adjust the programmatical requirements were a pretext to age discrimination. ANALYSIS AND FINDINGS Standard of Review 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 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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 Constr. 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 Tex. Dep't of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). 2020004301 5 The Supreme Court has held that because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a similarly situated comparative is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than the fact that the plaintiff was treated differently than someone outside her protected class. See O'Connor, 517 U.S. at 312; EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996). While there is no bright-line test for what constitutes “substantially younger,” that term has generally been applied to age differences in excess of five years. See Hammersmith v. Soc. Sec. Admin., EEOC Appeal No. 01A05922 (Mar. 6, 2002). Complainant may establish a prima facie case of discrimination in the non-selection context by showing that: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she was not selected for the position; and (4) she was accorded treatment different from that given to persons otherwise similarly situated who are not members of his protected group, or in the case of age, who are considerably younger than her. Obas v. Dep't of Just., EEOC Appeal No. 01A04389 (May 16, 2002); Williams v. Dep't of Educ., EEOC Request No. 05970561 (Aug. 6, 1998). Complainant may also set forth evidence of acts from which, if otherwise unexplained, an inference of discrimination can be drawn. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). In this case, numerous individuals attested that the Agency’s employees Source Evaluation Board (SEB) determined the needs of the SMASS III contract and drafted the request for proposal. Appeal File 1 at 360, 375, 387. Affidavits from a relevant official noted that the SMASS III project had different requirements than the SMASS II project. Id. at 379. The hiring official denied that the two contractors identified by Complainant replaced Complainant; rather, it was asserted they met the requirements. Id. at 361. The Agency SEB met and, collectively, determined the appropriate needs for the SMASS III contract. Among those requirements were three entry-level positions requiring an engineering degree and less than five years of experience. All engineering positions required a minimum of a Bachelor’s degree in engineering or other science. Complainant did not meet the requisite qualifications as outlined by the Agency and provided to Prime Contractor for use in selection of candidates. The selected candidates, named by Complainant, had these qualifications. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions in setting the requirements for the SMASS III contract. We find that Complainant has not established a prima facie case for age discrimination in this case. The contested positions for the SMASS III contract required an engineering degree and less than five years of experience. 2020004301 6 Complainant has over five years of experience. Even if Prime Contractor were to allow her to take an entry-level position with her experience, the positions for SMASS III required an engineering or science degree, which Complainant does not possess. There is also no evidence that Complainant holds requisite academic background to sit for engineering licensure examinations. Complainant does not meet criteria for any engineering position under the SMASS III contract, regardless of level. As such, even if Complainant’s disputed allegation that three SMASS II positions were downgraded for college entry-level graduates for fresh ideas were true, given that she was not qualified for any position she applied for, and the two identified newly hired engineers were so qualified. Moreover, the two identified newly hired engineers were hired for a position posted January 18, 2018, a position for which Complainant did not apply for. Appeal File 1 at 616; Appeal File 2 at 309. As such, the fact that the selected engineers were younger than Complainant does not prove that Complainant was treated less favorably than the identified younger individuals. There is no evidence that the Agency considered an unlawful factor when it determined that Complainant did not meet the qualifications for any engineering position with the SMASS III contract. Moreover, there is no evidence that the two selected new engineers, or any other engineer on the SMASS III project, did not meet the requirement of an engineering degree. Accordingly, we find that Complainant did not establish a prima facie case that the Agency discriminated against her based upon her age when she was not selected for a contractor position with the SMASS III contract. Next we turn to the issue of Complainant’s lay off from the hiring contractor. Assuming, arguendo, that Complainant established a prima facie case of age discrimination with regard to her layoff, which resulted from her non-selection to the SMASS III contract, the Agency has articulated a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affairs, 450 U.S. at 253. Specifically, the SMASS II contract, for which Complainant was hired, expired. As such, there was no business need to retain her as an employee. Complainant contends a witness exists that, in her opinion, should have been interviewed that could support her claim would attest he disagreed with making the contested positions entry- level. Even if her opinion is correct and the witness could corroborate that the positions were downgraded and should not have been, this is merely evidence of a difference of professional opinion and does not prove that these decisions were a pretext to age discrimination. Complainant has provided no evidence that the Agency considered an unlawful factor when the SMASS II contract ended, which resulted in Complainant’s layoff. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based upon her age when she experienced a layoff in response to the termination of the SMASS II contract. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision. 2020004301 7 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). 2020004301 8 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 December 9, 2021 Date