01A10133
09-25-2002
Tina DiGuglielmo, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Tina DiGuglielmo v. Department of the Army
01A10133
September 25, 2002
.
Tina DiGuglielmo,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A10133
Agency Nos. BEAERE980910240; BEAEFO980910210
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that, beginning in October 1993, complainant was
temporarily promoted from her position as a GM-14 Director of Mission
Operations (DMO), to the GM-15 Civilian Executive Assistant (CEA)
position for 179 days, at the agency's Bluegrass Army Depot (BGAD) in
Richmond, Kentucky. After a Inspector General complaint was lodged,
an investigation was performed which uncovered a potential nepotism or
conflict of interest situation, in that complainant's detail put her in
the position of supervising her husband, the GM-13 Director of Business
Management. Complainant was, however, allowed to complete the detail,
and in April 1994, returned to her GM-14 DMO position. In a memorandum to
his superior (General A), dated July 13, 1994, complainant's supervisor
(Colonel A), noted that complainant had been serving in the dual
capacity of DMO/CEA since October 1993. He further noted that a position
classifier had recommended the permanent addition of the CEA duties to the
DMO position and an upgrade of the combined position to the GM-15 level.
Relying on these facts, Colonel A requested an exception to the hiring
freeze and permission to noncompetitively promote complainant to the
GM-15 level. On July 28, 1994, General A denied the request because it
would again create the conflict of interest problem of complainant being
given substantial opportunities to supervise her husband. On July 31,
1994, complainant was permanently assigned to the combined duties of
DMO/CEA, which, in part because it specifically excluded supervision
over the Director of Business Management (her husband), was graded GM-14.
The record reflects, however, that BGAD command continued to receive
anonymous complainants against complainant and her husband with respect
to alleged nepotism and conflicts of interest, despite the removal
of complainant from a supervisory role over the Director of Business
Management. Record evidence suggested that between July 1994 and February
1996, agency officials considered various proposals regarding the CEA
duties, including, filling the CEA position through a reassignment action
by swapping the assignments of complainant and an employee from another
activity, so as to remove any hint of impropriety. No action was taken,
however, and complainant continued to perform the DMO/CEA duties until
February 1996. On February 28, 1996, complainant received official notice
that effective March 31, 1996, she would be reassigned from the combined
GM-14 DMO/CEA position to the position of GM-14 DMO. Subsequent to
complainant's reassignment, the CEA position was reestablished as a
standalone GM-15 position, and vacancy announcement for the position
was opened on April 21, 1997. Complainant applied for this position,
but before her application could be forwarded to the selecting official,
a GM-15 employee (S1: male) from another facility requested a lateral
transfer into the CEA position. His the request was approved and the
vacancy announcement was cancelled.
Believing she was the victim of discrimination, complainant sought EEO
counseling and subsequently filed formal complaints on September 10,
1996, and January 26, 1999, alleging that she was discriminated against
on the basis of sex (female) and/or reprisal for prior protected EEO
activity when:
she was denied a promotion to a GM-340-15 Civilian Executive Assistant
(CEA) position;
she was laterally reassigned from the DMO/CEA, GM-14, position;
she received a Letter of Concern (LOC) dated April 10, 1996;
the CEA, GM-340-15, position was filled by lateral reassignment; and
the vacancy announcement for the CEA, GM-340-15, position was cancelled.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of sex discrimination in that she failed to show
that any similarly situated male employees were treated more favorably
under similar circumstances. The FAD also found that complainant failed
to establish a prima facie case of reprisal. Further, the FAD found
that even assuming, arguendo, complainant established a prima facie
case on both bases, the agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were pretextual. Specifically, the FAD found that complainant
was not promoted into the GM-15 CEA position, and was reassigned to her
previous position of DMO because of the nepotism and conflict of interest
concerns which resulted from her being placed in a position with direct
supervisory responsibilities over her husband. As to the April 10,
1996, LOC that complainant received, the FAD found that complainant
was issued the LOC for exceeding the authorized net explosive weight
at an ammunition loading platform and for lack of concern for safety
in explosives operations. The FAD found that another employee (CW1:
male) also received an LOC for the same incident. The FAD concluded
that complainant failed to show that the LOC was issued in reprisal for
engaging in protected EEO activity, in that the management official who
issued the LOC stated in his affidavit that he did not become aware of
complainant's EEO activity until after the LOC was issued. Finally, the
FAD found as to the vacancy announcement and lateral reassignment of S1
into the GM-15 CEA position, the agency stated that because a qualified
employee was available for lateral reassignment, the application process
never progressed to the point where any other candidates were considered.
Further, the agency stated that complainant was not herself eligible
for a lateral reassignment into a GM-15 position because she had never
held that permanent grade level. The FAD concluded that complainant
failed to show that these legitimate, nondiscriminatory reasons were
mere pretext to mask discriminatory or retaliatory animus.
On appeal, complainant reiterates numerous contentions regarding the
agency's failure to find a way to solve the conflict of interest problem
and promote her into the GM-15 CEA position. Complainant also contends
that she was issued the LOC as reprisal for filing an EEO complaint,
and that the agency approved S1's lateral transfer into the GM-15 CEA
position so that they would not need to consider her as a candidate,
despite her being the more qualified employee. The agency requests that
we affirm its FAD.
Complainant has alleged a claim of disparate treatment which is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to reprisal cases). For complainant to prevail, 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. 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, nondiscriminatory reason for its
actions. 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.
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 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. United States 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).
Here, the Commission finds that, assuming, arguendo, complainant
established a prima facie case of sex and reprisal discrimination, the
agency articulated legitimate, nondiscriminatory reasons for its actions.
The record reflects that the agency made numerous attempts to find
a solution to the conflict of interest problem raised by complainant
being in a supervisory position over her husband, including transferring
complainant or her husband into other positions with the agency. (Report
of Investigation, pages 133-151). Complainant has not proffered
any persuasive evidence to show that any other agency employees were
permitted to remain in positions where they supervised family members.
While complainant has presented several challenges to the agency's
reasons for not finding a way to place her in the GM-15 CEA position,
she has failed to show, by a preponderance of the evidence, that the
agency's stated reasons are a pretext for sex discrimination.
As to the issue of the LOC, we concur with the agency's finding that
complainant failed to show that the management official who issued the
LOC was aware of complainant's EEO activity prior to the date the letter
was issued, and that another employee, outside her protected class,
was also issued an LOC for the same incident. Finally, with respect to
the vacancy announcement and lateral reassignment of S1 into the GM-15
CEA position, agency regulations establish that employees requesting a
lateral transfer are considered separately from candidates for promotion
(such as complainant) and that lateral reassignments are noncompetitive
actions. (R.O.I., page 234). As S1 submitted a request for a lateral
transfer, and was deemed qualified for the position at issue, he was
selected and the vacancy announcement was cancelled before complainant
or any of the other candidates were considered. Complainant has failed
to proffer any persuasive evidence that these actions were the result
of discriminatory or retaliatory animus, nor has she established that
the agency legitimate, nondiscriminatory reasons for these actions
were pretextual.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 25, 2002
__________________
Date