Belia A.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Feb 13, 2019

0120172209 (E.E.O.C. Feb. 13, 2019)

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.
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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 outdated 2013 Performance Standards and late receipt of the 2013 Standards;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 outdated 2012 IDP;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
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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.

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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).
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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
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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