0120162146
03-09-2018
Sara S.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sara S.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120162146
Hearing No. 480-2014-00595X
Agency No. ARTAEGU13OCT03647
DECISION
On June 17, 2016, 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 May 19, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Assistant Director at the Agency's Child Youth School Services (CYSS) Child Development Center (CDC) facility at Camp Walker, Republic of S. Korea.
On March 2, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. Effective November 30, 2013, Complainant's position was eliminated.
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). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision 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. Specifically, the Agency found that it articulated a legitimate, nondiscriminatory reason for its action, namely that the population of clients serviced by Complainant's facility had dropped significantly and that her position was no longer necessary. The Agency further found that Complainant failed to show that its articulated reason was a pretext.
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").
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of reprisal.
We next find that the Agency articulated a legitimate, nondiscriminatory reason for its action. The Notice of Separation stated that:
For some time [the facility] has suffered financial losses and failed to meet . . . budget goals. As a result, over the past 22 months, [the Agency] has conducted a series of Staff Assistance Visits (SAV) concerning [the facility's] programs. These assistance visits made recommendations to restructure the [facility's] work force. In the case of the Child Development Center, the Region SAV team recommended the elimination of one Regular Full Time supervisory position out of the current three. Those three positions were: the CDC Director position, the CDC Assistant Director position, and the Training Specialist position. The SAV recommended that the Assistant CDC Director position and the Training Specialist position be combined. . . . The Director position and the Training position are core elements of the CDC program, while the Assistant CDC Director position is only required in CDC programs which provide services for a larger child population. As such, eliminating the Assistant Director position and combining those duties with those of the Training Specialist is clearly the best option. This option also provides the greatest staffing flexibility given the skill set requirements of the positions.
The Agency having articulated a reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason was a pretext to mask reprisal, or otherwise show reprisal occurred. Following a review of the record we find Complainant has failed to meet this burden. Complainant argues that combining the duties of the Training Specialist and Assistant Director into a single position violated Agency regulations. She further disagreed that her removal was due to financial reasons "due to the fact that two new staff had just come on board, one to my knowledge was making a higher salary than I was making, other positions were available in the center and this was the only guidance from the SAV findings that the agency carried out and they are still hiring to date."
With regard to Complainant's argument that combining the position of Training Specialist and Assistant Director violates an Agency regulation, Complainant's second level supervisor (S2), who signed the Notice, averred that the regulation Complainant refers to:
Is out dated and does not reflect the most current guidance. There are many changes to [the] guidance since [the regulation] was written . . .. When I was questioned on my decision about can I dual-hat a [Training Specialist] and an Assistant Director, I asked for guidance from Pacific region and was told by [________] from the region that I was correct in my actions and those two positions could be dual-hatted.
The record contains copies of a contemporaneous email conversation between S2 and a Pacific Region CYSS Program Analyst confirming S2's version of events. See Report of Investigation (ROI), Bates Stamp 000034-5. With regard to Complainant's allegations that the facility was still hiring people, S2 averred that "we are always hiring" due to high turnover of caregivers, but that management staffing "is very stable and the last staff I hired came on board two years ago." On appeal the Agency notes that, as an Assistant Director, Complainant was not similarly situated with the caregivers who were hired.
While Complainant disagrees with the Agency's action, she has not shown, by a preponderance of the evidence, that the action was based on reprisal. Even assuming arguendo that combining the positions of Trainer and Assistant Director was prohibited by the Agency's guidance, or that others were hired before and after Complainant's termination, that is insufficient to establish reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that reprisal occurred, and we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
March 9, 2018
__________________
Date
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.
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