Belia A.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionFeb 13, 20190120172209 (E.E.O.C. Feb. 13, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Belia A.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120172209 Hearing No. 570-2015-00630X Agency No. DON140001A001 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the April 13, 2017 decision of an Administrative Judge 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.2 BACKGROUND During the period at issue, Complainant worked as a Financial Management Analyst, GS-0501- 13 at the Agency’s Navy Engineering Logistics Office (NELO), Finance Directorate facility in Washington, D.C. 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. 2 The Agency did not issue a final order indicating that it would fully implement the AJ’s decision. Pursuant to EEOC Regulation 29 C.F.R. § 1614.109(i), the AJ’s decision is the final Agency action. 0120172209 2 On February 6, 2014, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on her race (African-American) and age (YOB: 1957). The Agency summarized Complainant’s claims as the following: 1. on January 17, 2014, Complainant was removed from her position as the Finance Defense Travel Administrator (FDTA) and replaced with a contractor; 2. outdated 2013 Performance Standards and late receipt of the 2013 Standards; 3. outdated 2012 IDP; 4. 2012 – increase in work duties with no financial compensation; 5. 2012 – First Line Supervisor not representing Complainant properly to her second line Supervisor; 6. 2012 – Complainant was placed in a non-senior seating assignment at JBAB [Joint Base Anacostia/Bolling]; 7. 2011 – Complainant accepted new Career Management Officer (CMO) position as additional duties but not compensated at same grade level of predecessor; 8. 2011 – Working under outdated Performance Standards; 9. 2010 – Not receiving Performance Standards in a timely manner; 10. 2007 – Applied for a Supervisory Budget Analyst position and not selected. Individuals selected were less experienced. In its May 28, 2014 Notice of Acceptance and Partial Dismissal, the Agency accepted claims 1 and 2 for investigation and dismissed claims 3-10 on procedural grounds. After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant requested a hearing. Before the AJ, Complainant submitted a December 23, 2015 request to reinstate claims 3 - 10 and add additional claims. In response, the Agency submitted a January 8, 2016 motion in opposition, stating that Complainant’s request should be denied and claim 2, previously accepted for investigation, should also be dismissed as untimely. Subsequently, the case was reassigned to another AJ. On March 1, 2016, the new AJ denied Complainant’s request to reinstate her 0120172209 3 previously dismissed claims, and determined that claim 2 was also untimely pursued with an EEO Counselor.3 On March 24, 2017, the Agency filed a Motion to Dismiss Complainant’s sole remaining claim (claim 1) for failure to state a claim. On April 13, 2017, the AJ granted the Agency’s Motion to Dismiss over Complainant’s March 27, 2017 objection. The AJ determined that the record did not support that Complainant was an aggrieved individual. Alternatively, the AJ discussed the merits of the claim and determined that there was no evidence of discrimination. The AJ explained that if Complainant was presumed aggrieved and if the Agency’s Motion was construed as one for Summary Judgement, the AJ determined that the Agency’s legitimate non- discriminatory reasons for its actions were not a pretext for unlawful discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Since the AJ issued a decision by summary judgment on the merits of Claim 1, we will not address the alternative ruling dismissing the claim on procedural grounds. 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ properly issued a decision here by summary judgment. 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 complainant to prevail, she must first establish a prima facie 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, nondiscriminatory 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 3 On appeal, Complainant does not expressly challenge the Agency’s dismissal of claims 2-10 for untimely EEO Counselor contact. Therefore, we will not address these matters further in our decision. 0120172209 4 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 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). Agency management articulated legitimate, nondiscriminatory reasons for its actions. Complainant’s first-line supervisor (“S1”) (Caucasian; YOB: 1954) stated that Complainant was not removed from her position. S1 explained that the Agency switched to a new Defense Travel System on October 1, 2013. S1 further explained that the new travel system was not working properly, and staff was “unable to determine why the transactions were not processing properly.” As a result of these difficulties, S1 stated that he and his supervisor (“S2”) (Caucasian; YOB: 1963) “decided to give the contractor a lead role in operating the system to determine what was going on” because the contractor “had a lot of expertise and was familiar with the system and how it works.” S1 further stated that while the contractor took a lead role, Complainant “remained working on the team as the lead government employee.” S2 stated that Complainant remained in the FDTA position until she retired. S2 further stated that he decided to remove Complainant from the lead role “because of the issues [they] were having related to the system.” S2 explained that the individual placed in the lead role could address these issues and Complainant “continued to perform the same FDTA duties she had been previously performing without issue.” After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on her race or age. New Claims on Appeal (Hostile Work Environment and Class Action) Finally, we note that on appeal, Complainant asserts that she was subjected to a hostile work environment by addressing various matters not previously raised below, and asserted that her case should be construed as a class action. If she wishes to pursue these claims, she must initiate contact with an EEO Counselor as the Commission has long held that a complainant may not raise a new claim for the first time on appeal. See, e.g. Torres v. U.S. Postal Service, EEOC Appeal No. 01934108 (June 10, 1994). 0120172209 5 Accordingly, we AFFIRM the AJ’s decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 0120172209 6 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 February 13, 2019 Date Copy with citationCopy as parenthetical citation