Willetta L., Complainant,v.Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jul 26, 2017

0120151577 (E.E.O.C. Jul. 26, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Willetta L.,
Complainant,

v.

Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.

Appeal No. 0120151577

Hearing No. 430-2013-00114X

Agency No. 126609400727

DECISION

On April 11, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s March 9, 2015, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-7 Financial
Technician at the Agency’s Uniform Business Office, Naval Health Clinic, Marine Corps Air
Station facility in Cherry Point, North Carolina. As such, she was responsible for ensuring that
all workload activities performed within the Military Treatment Facility (MTF) that were
available for reimbursement from third parties were captured and reported accurately. She was
the subject matter expert and a consultant in all areas of the Third Party and Uniform Business
Office programs for the entire MTF. Her major duties involved creating, administering, and
managing patient accounts for sources of reimbursement.

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.
0120151577

2
Complainant's first level supervisor (Sl) was a GS-11 Supervisory Financial Specialist, who also
served as the Deputy Comptroller. On February 28, 2011, the GS-9 Department Head/Supervisor
of the Business Office (SBO) retired. That same day, the Commanding Officer appointed Sl as
the Uniform Business Office (UBO)/Third Party Collections (TPC) Program Manager for the
Activity. On March 8, 2011, the Commanding Officer also appointed Complainant as Medical
Services Accounts(MSA)/Collection Agent.

According to Complainant, she had been trained by the former SBO supervisor to take over for
the SBO. Complainant stated that after the SBO supervisor retired, the SBO supervisor’s duties
were supposed to be equally spread among the three GS-7 Financial Technicians. Instead,
Complainant received all the TPC duties. When she informed Sl that the bulk of the SBO's duties
were given to her rather than being rotated among the three technicians, Sl told her it was best to
leave it that way.

On June 8 and 22, 2011, Complainant spoke with Sl about her enhanced duties, explaining that
she had been working outside her position description (PD) since March 1, 2011. Complainant
requested a PD that accurately reflected her duties and assignments. On August 29, 2011,
Complainant was informed that there would be no changes to her PD.

On August 31, 2011, Complainant informed the Commanding Officer that she had been
performing SBO duties since March 1, 2011, but was not being properly compensated. Later that
day, the Comptroller, who was Complainant’s second-level supervisor (S2), informed
Complainant that he would have Sl compare Complainant’s PD with that of the former SBO, and
Sl would delete those duties from the former SBO’s PD that Complainant was not performing.
Although he denied it, Complainant sensed that S2 was upset with her. Sl told Complainant she
was offended by Complainant’s actions.

Based on her suspicion that she was doing all the work previously performed by the SBO, except
for supervising her two coworkers, Complainant requested a desk audit in October 2011. After
the desk audit was completed, Complainant met with Sl and the HR Liaison. They told
Complainant that the desk audit was done improperly because many of the duties that were
deemed beyond Complainant’s PD, such as preparing monthly and quarterly reports and the
Management Internal Control Program (MIPC) taskers, already had been reassigned to S1.
Therefore, instead of a promotion, S1 arranged for Complainant to receive a special act award to
compensate her for performing the higher-level duties during the transition period.

On March 9, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of race (African-American) when:

On December 9, 2011, Complainant’s first-line supervisor (S1) and a
Human Resources Liaison failed to take actions prescribed in the desk
audit conducted in October 2011, which resulted in a finding of
performing higher-level duties at the Uniform Business Office, Naval
Health Clinic, Cherry Point.
0120151577

3
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 requested a hearing but, on
December 12, 2014, the AJ denied the hearing request because Complainant failed to respond to
the AJ's Order Requesting a Status Update from Complainant. The AJ remanded the complaint
to the Agency, and 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.

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”).

On appeal, Complainant maintains that the Agency subjected her to discrimination when it failed
to award her a promotion based on the audit’s finding that she had performed additional and
complex work after her former supervisor retired, and this higher level of responsibility
warranted a grade increase. The evidence shows, however, that Complainant was not actually
recommended for a grade increase, and therefore not entitled to the promotion per the desk audit.

In the Classification Advisory, the Human Resources Specialist (HR Specialist) who audited
Complainant’s job stated that the purpose of “[t]he evaluation is to determine the complexity of
the additional duties being performed exclusively by [Complainant].” She also stated that “the
position of record,” namely Complainant’s GS-7 Financial Specialist position, was “not being
reevaluated for classification purposes, but to determine the accuracy of the level of work being
performed by [Complainant] as one of three incumbent[s] assigned to the subject position.”
After conducting the audit and noting that one of Complainant’s duties, namely “Factor 2:
Supervisory Controls,” “exceeded” those normally assigned to the position, the HR Specialist
made the following recommendations:

• Complainant’s duties “be assigned within their range of responsibility under appropriate
supervisory control;”
• “the responsibility for the programs associated with the department be placed under a
higher-level employee or the supervisor, [so] as not to cause confusion over where the
responsibility belongs;” or
0120151577

4
• “If [Complainant’s] responsibility level cannot be contained within the position . . . a new
position [should] be rewritten and [Complainant] be reassigned or . . . be allowed to
compete if the position is determined to be higher level duties.”

The HR Specialist then assessed that the points total of 1,485 for Complainant’s position fell
within her current GS-7 grade range (1,355 – 1,600), and provided her no credit for the category
in which she exceeded her PD duties. The desk audit did not recommend Complainant’s position
be regraded at a higher level.

Complainant contends that if she had received the full 450 points associated with the higher-level
category instead of the full 275 points associated with the actual PD duties, she would have
qualified for a GS-9 because her total would have been more than 1,600 points. Evidence in the
record establishes that the HR Specialist did not award Complainant the higher-level category of
points despite her assessment that Complainant had exceeded her PD duties. Instead, she
“recommended that the current incumbent [Complainant] be assigned within [her] range of
responsibility under appropriate supervisory control.” The Agency actions were consistent with
this recommendation.

In August 2011, the Agency took steps to remove Complainant’s duties that were not within the
range of responsibility for a GS-7 Financial Technician, and by the time the audit was conducted
all the additional duties that were beyond the scope of Complainant’s PD had been removed.
Additionally, consistent with the HR Specialist’s recommendation, the Agency assigned the
higher-level duties to S1. As a separate matter, the workload for the division was going to be
drastically reduced because it was losing its major customer, the U.S. Coast Guard. Thus, the
Agency presented legitimate, nondiscriminatory reasons for why Complainant was not promoted
to a GS-9.

Complainant asserted that the Agency’s actions were pretextual because she performed all the
same duties as the former UBO manager (Filipino), except for supervising other staff, and the
former UBO manager was promoted to GS-9 based on this accretion of duties. Complainant also
argued that the Agency promoted three unidentified Caucasian employees whose positions were
upgraded after a desk audit.

Sl stated that the principal reason the former UBO manager received a promotion to GS-9 was
because she supervised staff, which documentary evidence in the record confirms, and
Complainant does not dispute. Complainant also admits that she did not supervise anyone.
Thus, we find that Complainant and the former UBO manager are not similarly situated.

Further, S1 acknowledged that although two GS-7 employees under her supervision were
promoted to GS-9 based on desk audits, she countered that one of them was African-American
and they both were Health System Specialists in the GS-671 series, and hence not similarly
situated to Complainant. Complainant does not refute this information. Complainant did not
specifically identify the third Caucasian employee who was purportedly promoted and S1 said
there were only two such employees.
0120151577

5

Finally, even though the HR Specialist averred that she believed Complainant’s race motivated
the Agency’s decision not to promote Complainant, she offered no information to substantiate
her belief beyond an Environmental Survey that indicated a racial breakdown of the UBO unit
and of MTF’s GS-7 and GS-9 employees. According to the Survey, there are four employees in
UBO and three are White and one is Black (Complainant). The workforce profile for MTF
indicates that there are 20 GS-7 employees, one of which is Native Hawaiian or Other Pacific
Islander/Asian, two are African-American, and seventeen are Caucasian. The workforce profile
for MTF indicates that there are 31 GS-9 employees, of which four are African-American, two
are Hispanic, and 25 are Caucasian. While these statistics demonstrate that there is an
underrepresentation of African-Americans in MTF and at the GS-level level in contrast to the
White employees in those categories, the Environmental Survey does not reveal whether any of
the GS-9 employees received their grade because of a desk audit, whether they were under
Complainant’s supervisor, and whether there were any other Black employees who sought
employment or promotion in this division. Therefore, the statistics are insufficient to establish
that race has played a role in promotion decisions. We find that Complainant failed to show that
discrimination motivated the Agency’s actions at issue in this complaint.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, the Commission
AFFIRMS the Agency’s decision finding no discrimination.

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
0120151577

6
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.

0120151577

7

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

July 26, 2017
Date