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

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2020003531 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Susie K.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020003531 Agency No. 18-69224-00350 DECISION On May 24, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 27, 2020 final decision 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant worked as a Production Controller, GS-12, at the Agency’s SHIPPRECFAC in Yokosuka, Japan from September 2014 through December 2016. Complainant registered for the Priority Placement Program (“PPP”) on January 12, 2017. On August 30, 2018, Complainant filed a formal complaint claiming the Agency discriminated against her based on race (African-American), religion (non-denominational), color (Black), disability (shoulder), and in reprisal for prior protected EEO activity 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. 2020003531 2 A. (1) In November 2017, Complainant asked for EEO contact information and was told she had to conduct her own research, and that the information could not be provided to her. (2) From February 2017 through January 2018, the Supervisory Human Resources Specialist (“MO-1)”, Office of Civilian Human Resources (OCHR), required Complainant to lower her grade level to qualify for other jobs through the PPP; informed her that her PPP registration eligibility terminated on February 26, 2018, and she would only be eligible for positions under Executive Order (EO) 12721; informed her that she needed to un-register with OCHR Norfolk and register with OCHR Stennis; told her to go onsite to Jacksonville Naval Base to solicit herself for jobs, and told that Executive Order 12721 (EO 12721) does not apply in Jacksonville, Florida.2 (3) On March 26, 2018, MO-1 sent Complainant a job offer for a Ship Builder Specialist (Planner), GS-1101-12, which she would not qualify for due to the physical requirements of the position. (4) Between February 2017 and August 2018, the Supervisory Human Resources Specialist ignored her when she told him that she felt like she was not going to get a GS-12 position because she was Black. B. The Human Resources Specialist (Program Manager) (“MO-2”) told her she should not have been rated as qualified for a GS-1101-12 position and would offer her a GS-11 position with promotion potential to a GS-12, told her that if she did not accept the job offer she would never work for the government again; asked her “do you believe in God?” and told her that she was a GS-14, so people stopped and listened when she talked. C. MO-1 sent her a job offer for a Ship Building Specialist, GS-1101-11/12 position, for which she was deemed unqualified due to her inability to complete the physical, which was a condition to employment. D. She was required to travel 120 miles (round trip) to the location of the physical examination for the position of Ship Building Specialist, GD-1101-11/12, which she believed was a “set up.” 2 The record reflects that EO 12721 is used to appoint eligible family members non- competitively to a career-conditional appointment in the civil service once they return to the United States. 2020003531 3 On April 27, 2020, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination The instant appeal followed. ANALYSIS AND FINDINGS 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. The Supervisory HR Specialist (“MO-1) (Caucasian, very fair, Christian-Lutheran) stated that her organizational relationship to Complainant was that of the PPP Registering Human Resources Office (HRO) point of contact. She asserted that Complainant did not ask for any EEO contact information at any time during their interactions and said she never told Complainant that she needed to research to how to contact EEO and “I would have gladly provided the information if she had asked for it.” Complainant also claimed that from February 2017 through January 2018, MO-1 required her to lower her grade level to qualify for other jobs through the PPP; informed her that her PPP registration eligibility terminated on February 26, 2018, and she would only be eligible for positions under Executive Order 12721; informed her that she needed to un-register with OCHR 2020003531 4 Norfolk and register with OCHR Stennis; told her to go onsite to Jacksonville Naval Base to solicit herself for jobs, and told that Executive Order 12721 (EO 12721) does not apply in Jacksonville, Florida MO-1 stated that she did not advise Complainant that she needed to lower her grade in order to obtain PPP matches. She stated that she advised Complainant that by lowering her grade it might result in more PPP match opportunities. MO-1 noted that Complainant was originally registered for PPP position with a lowest grade of GS-11, but on November 8, 2017, she lowered her acceptable positions to grade GS-9. MO-1 said this was completely voluntary on Complainant’s part. In addition, MO-1 stated that she placed Complainant on notice that her registration would expire one year from registration date unless a terminating action was affected. Moreover, she stated although Complainant’s registration period was over, she was still able to apply under EO 12721 if it was listed in the area of consideration on a job announcement in addition to her eligibility to apply as an US citizen. Regarding the Ship Building Specialist position, MO-1 explained that Complainant was determined well-qualified through the joint qualifications PPP process and she received the PPP job offer. She further stated that conditions of employment, such as security, drug testing, and medical examinations are not evaluated during the qualification review process. However, Complainant was unable to be appointed to the position because of a medical professional’s assessment based on the physical requirements listed in the position description. Furthermore, MO-1 noted that the command cannot be forced to place a selectee in a position for which the selectee does not meet the physical requirements. Moreover, the MO-1 stated that she never once stated that Complainant would be guaranteed placement through PPP and that she has to make an effort applying for positions. She considered Complainant’s reluctance to register for lower grade levels hurt Complainant in the long run. In addition, HR Specialist (African American, brown, Christian) explained that she issued the job offer and amended job offer to Complainant on April 18 and 19, 2018, pending the outcome of her physical and security clearance. Regarding claim B, Complainant asserted that the Human Resources Specialist (Program Manager) (“MO-2”) told her she should not have been rated as qualified for a GS-1101-12 position and would offer her a GS-11 position with promotion potential to a GS-12, told her that if she did not accept the job offer she would never work for the government again; asked her “do you believe in God?;” and told her that she was a GS-14, so people stopped and listened when she talked. MO-2 (African American, black, Baptist) at the Agency’s Washington D.C. Navy Yard stated that she had no organizational relationship with Complainant. She stated that she only spoke with Complainant once and does not recall making any comments about whether Complainant believes in God. Further, MO-2 stated that when she heard from gaining activity SERMC that the OCHR offered a Shipbuilding Specialist (Planner) position to Complainant at the GS-12 level. 2020003531 5 At that time, the gaining activity stated that it did not believe Complainant was qualified for the position and wanted to initiate a qualification dispute. During the relevant period, the activity hired employees for the position that Complainant was determined qualified for. Thereafter, the MO-2 explained to the SERMC that it must find a position for Complainant. Moreover, MO-2 stated that the gaining activity offered a new job offer to Complainant for Shipbuilding Specialist (Planner), GS-1101-11 Target for SERCM in Mayport, Florida. Complainant accepted the position and as a condition of employment, a pre-employment physical examination was scheduled for her. However, Complainant could not meet the physical/medical requirements and could not be placed in the position. MO-1 stated neither the HR Specialist (Program Manager) nor Complainant discussed or shared any statement concerning if they believe in God. Furthermore, she stated that she had no part of this discussion. Regarding claim D, Complainant claimed that she was required to travel 120 miles (round trip) to the location of the physical examination for the position of Ship Building Specialist, which she believed was a “set up.” However, both MO-2 and the Supervisory HR Specialist (Caucasian, white, male, Catholic) denied any knowledge of Complainant being sent 120 miles round trip to get a physical. In sum, the evidence does not support Complainant’s claims that she was discriminated against with regard to the subject matters. S1 provided unrebutted testimony that either directly contradicted Complainant’s allegations or that provided a legitimate, non-discriminatory reason for the actions. Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were pretext designed to mask discriminatory or retaliatory animus. To the extent that Complainant may be asserting the she was entitled to some sort of reasonable accommodation that would have allowed her to accept the Ship Building Specialist position, the record is devoid of any medical documentation supporting Complainant’s assertion that she has a disability. The evidence indicates that Complainant sustained a shoulder injury on a recreational trip in 2012. Complainant asserts that she did not submit medical documentation to management officials regarding this injury, and notes that in the position which she had held in Japan, she had “no issues” performing her job. (Investigative File, pp. 000950-000951). The record merely reflects that various management officials were aware of her five to six year old injury because she had “told them.” Even if we were to presume for purpose of analysis only, and without so finding, that Complainant is an individual with a disability, the record is devoid of evidence supporting a finding that Complainant ever requested, or identified, a possible accommodation before the Agency determination to rescind this employment offer. See, e.g., Floyd L. v Department of Veterans Affairs, EEOC Appeal No. 2020003370 (June 23, 2021). 2020003531 6 CONCLUSION We 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. 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. 2020003531 7 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 November 22, 2021 Date