[Redacted], Syreeta P., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Mar 16, 2022

Appeal No. 2021002845 (E.E.O.C. Mar. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Syreeta P.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2021002845 Hearing No. 410201900383X Agency No. DCMAP6180031 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s final action concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Management Deputy, NH-1101-04, in the Defense Contract Management Agency (“DCMA” or “Agency”) Contract Management Office ("CMO") for Lockheed Martin Marietta (“LMM”), located in Marietta, Georgia. On July 4, 2018, Complainant filed a formal EEO complaint alleging discrimination by the Agency on the bases of race (African American), sex (female), and color (Black) when: on January 5, 2018, she was issued a 2017 Performance Appraisal with an Overall Contribution Score (“OCS”) numerical rating, Contribution Rating Increase (“CRI”), and Contribution Award (“CA”) that was not reflective of her performance. 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. 2021002845 2 The Agency accepted the complaint and conducted an investigation. The evidence gathered during the investigation showed that in 2018, the Agency implemented the DCMA Civilian Acquisition Workforce Personnel Demonstration Project (“AcqDemo”), for the first time to determine performance appraisal scores and performance awards for its employees working in designated “Acquisition Positions,” which included Complainant. Employees whose performance was reviewed by DCMA AcqDemo, were assigned to “Pay Pools” based on their location, then to Sub Pay Pools (“SPP”) based on their functional series. For instance, Complainant, whose functional series was management (“MGMT”), was placed in the MGMT SPP for the East Region Pay pool. The DCMA AcqDemo review process began with the employee submitting an annual self- assessment of their contributions to the Agency, to their rating official, who then uses it to rate and score the employee in six categories. The rating official submits the self-assessment and scores for panel review by the appropriate SPP. Next, according to testimony provided by the SPP MGMT Manager, the SPP panel “spends 1-2 weeks independently reviewing and scoring the appraisals. This was followed by a one-week, closed door, close-hold session to review every appraisal” for the SPP, where the panel comes to an agreement on each score. The SPP Manager would submit the ratings to the Pay Pool Manager for approval. The SPP Manager assigned to the East Region SPP MGMT was the Deputy Regional Commander, NH-04, (white, male). The SPP MGMT Panel was comprised of a Contract Management Tertiary Director, NH-04 (white, male), a Lieutenant Colonel for the U.S. Air Force (male, race not specified) and two Captains for the U.S. Navy, (male, race not specified, and female, African American). Complainant’s annual rating reflects that S1 rated her “4H” in all six categories, meaning that she “met all of the descriptors and discriminators for a given factor in each category.” Only 11 of the 56 MGMT employees in Complainant’s SPP received a “4H” rating on all six categories. Three of the 11 MGMT employees received a score of 100 for each 4H rated category, and Complainant received a score of 98. The East Region SPP MGMT Manager testified that the DCMA AcqDemo process was fair, and Complainant received a score higher than most of her peers but sidesteps any specifics as to why she was scored 98 while two of her coworkers received 100s. He noted that Complainant received two additional points as she exceeded her expected score of 96, and that the SPP simply concurred with the scores her rating official recommended. Based on his own “independent review” the SPP MGMT Manager determined that the SPP Panel properly applied the DCMA AcqDemo process, consistent with other MGMT employees when verifying Complainant’s Overall Contribution Score (“OCS”) numerical rating, Contribution Rating Increase (“CRI”), Contribution Award (“CA”). Complainant asserts that her performance warrants a score of 100. 2021002845 3 The Agency states that there are mechanisms in place to catch any scoring anomalies, including that the SPP Panel applies “DCMA AcqDemo Business Rules” when assessing each performance appraisal and review, and compares the appraisals for employees within the SPP to determine whether the appraisal contains any scoring anomalies. The approving official (Pay Pool Manager) also has discretion to adjust the scores recommended by the SPP. In addition, employees may utilize a “DCMA AcqDemo Grievance Process” so rating officials can provide “clarifying information.” This appears to be the case for the two Deputy Commanders, NH-4 who scored higher than Complainant. The other MGMT employee to score 100s was the East Region Pay Pool Manager. Complainant notes that the SPP Manager and SPP Panel for East Region SPP MGMT were rating their peers and each other. After investigating her complaint, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely requested a hearing. Following a discovery period, the Agency submitted a motion for a decision without a hearing, and the AJ subsequently issued a decision by summary judgment in favor of the Agency. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (“EEO-MD-110”), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. 2021002845 4 Specifically, the AJ determined that Complainant failed to provide sufficient evidence to create a disputed issue of material fact as to whether the RMOs were motivated by discrimination, a threshold requirement to establish a prima facie case necessary for a hearing. On appeal, Complainant argues that her 2017 Performance Review and award were motivated by discrimination because the Agency failed to ensure diversity among Pay Pool Managers and the composition of the SPP Panels. To support her assertion, Complainant references a 2016 RAND Corporation study (which she did not include in the record) that found that female and non-white employees in AcqDemo experienced fewer promotions and less-rapid salary growth than in the GS system, and identified a failure by Agencies using AcqDemo to include Diversity-Specific Protections. However, the Commission and the courts have held, that while statistics are relevant, statistics alone, especially if they are generalized and over broad, will not be sufficient to prove discrimination for an individual complaint of disparate treatment, even if those statistics establish a meaningful disparity. See Stevens v. EEOC, EEOC Appeal No. 01970848 (August 14, 1997). See also, McCarty v. Dep’t of the Navy, EEOC Appeal No. 01965283 (Jan. 28, 1998) (noting that statistical evidence is less significant where the ultimate issue is whether a particular complainant was the victim of an illegitimately motivated employment decision). Complainant also argues that discriminatory intent can be inferred, recounting that she is regularly disregarded and treated as though she is invisible in a predominantly male workplace. However, she does not identify specific examples that would connect this past unfavorable treatment to her rating official, the SPP Manager, SPP Panel Members, or the East Region Manager, who were responsible for determining her performance scores and award. The white male employees Complainant identifies as receiving favorable treatment, including higher performance award amounts, are not relevant to establishing a question of material fact on the matter of discriminatory motive, as they are not “similarly situated” to Complainant. They are her subordinates and were reviewed by a different SPP (SPP for In-Plant Engineering and SPP for In-Plant Quality). See Cantu v. Dep’t of Homeland Sec., EEOC Appeal No. 01A60528 (Jul. 14, 2006) (for comparative evidence relating to other employees to be considered relevant, all relevant aspects of the employees' work situation must be identical or nearly identical, i.e., that the employees report to the same supervisor, perform the same job function, and work during the same time periods) citations omitted. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the AJ’s decision which became the Agency’s final order. 2021002845 5 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). 2021002845 6 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