0120130273
09-05-2014
Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120130273
Agency No. 8I1M11009
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal from the Agency's September 12, 2012 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.
At the time of events giving rise to this complaint, Complainant was employed as a contractor and assigned to work as a Customer Requirement Specialist for the Agency's Air Force SEEK EAGLE Office (AFSEO) at Eglin Air Force Base in Florida. Complainant had worked in that position for five years. The AFSEO Technical Director (SO1 - Caucasian, male) and the AFSEO Commander (SO2 - Caucasian, male) knew Complainant, but did not directly supervise her.
In 2009 and 2010, the Agency converted approximately 20 contractor positions in AFSEO to civilian positions. As part of this conversion, the Agency converted the contractor Customer Requirement Specialist position to a civilian Data Management Assistant position.
In October 2010, the Agency advertised the position of Data Management Assistant, GS-0303-07; under vacancy announcement number WR-E398634. According to the position description, the incumbent "performs duties to identify customer requirements and a variety of performance indicator, financial and engineering data support tasks for the [AFSEO]" and is a "[k]ey member of the requirements group that acts as the 'single face to the customer' for the entire organization." In addition, the position description stated that the incumbent performs the requirements duty on a daily basis and "interfaces with customers, providing procedural directions and appropriate points of contacts." The vacancy announcement stated that the Agency would evaluate an applicant's qualifications on the basis of knowledge, skills, and abilities (KSAs) in nine areas - mostly related to knowledge of various software, databases, and processes1 - but did not require an applicant to submit KSA essays.
Complainant applied for the position. There were two referral certificates for the position: (1) an external referral certificate consisting of Complainant and three other applicants; and (2) an internal referral certificate consisting of 13 applicants. After reviewing the applicants' resumes, SO1 and SO2 selected an external applicant (Hispanic, male) for the position.
On May 12, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when it did not select her for the position.
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 EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).2 The decision concluded that Complainant failed to prove that the Agency subjected her to race or sex discrimination as alleged. Complainant then filed the instant appeal.
Standard of Review
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 EEO MD-110, Ch. 9, � VI.A (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").
Adequacy of the Record
On appeal, Complainant argued that the Agency did not adequately investigate her EEO complaint because the record included "research shortfalls."
Our regulations provide that the agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint and define an appropriate factual record as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. See 29 C.F.R. � 1614.108(b). While the agency has an obligation under 29 C.F.R. � 1614.108(b) to develop an impartial and appropriate factual record, the complainant can also cure defects in an investigation, after reviewing the report of investigation, by notifying the agency (in writing) of any perceived deficiencies in the investigation or by requesting a hearing before an AJ. See EEO MD-110, at Ch. 6, � XI and Ch. 7, � I.
Upon review, we find that the Agency developed an impartial and appropriate factual record that allows us to draw conclusions as to whether race or sex discrimination occurred. Initially, we note that Complainant chose not to take advantage of the above-mentioned opportunities to cure any defects in the instant investigation. Moreover, our review of the record finds that the Agency's investigation is sufficient for a reasoned determination on Complainant's non-selection complaint. The record contains affidavit testimony from 11 individuals including Complainant, SO1, SO2, employees involved in the conversion and staffing processes, and employees who worked with Complainant in AFSEO. We note that Complainant submitted a list of five proposed witnesses and that the EEO Investigator obtained affidavit testimony from all five proposed witnesses. The record also contains documentation relevant to the Data Management Assistant selection including the vacancy announcement, the position description, Complainant's application, the Selectee's application, the referral certificates, and SO1's previous selections. Accordingly, we find that the record is adequately developed.
Disparate Treatment - Race and Sex
To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of race and sex discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for selecting the Selectee over Complainant. Specifically, SO1 and SO2 averred that they evaluated the applicants' qualifications based on the position's primary duties, which included customer management, rather than on the KSAs. They reasoned that the KSAs merely identified the specific tools (such as software or hardware) that an applicant would be expected to understand in order to productively perform the position's primary duties and that an applicant's customer management skills were more important than knowledge of specific software or hardware, which periodically evolved within AFSEO. In addition, SO1 and SO2 averred that they valued the Selectee's customer service experience because one of the position's primary duties was to identify customer requirements and serve as a requirements liaison between the customer and AFSEO to ensure the needs of both parties are effectively communicated. Moreover, SO1 and SO2 averred that they valued the Selectee's previous operational weapons experience as an Air Force Battalion Air Liaison Officer. Finally, SO1 and SO2 cited performance issues that Complainant had when she was working in AFSEO. They averred that the contractor management team had, on two occasions, placed Complainant on a performance improvement plan (PIP). They also averred that, due to Complainant's inability to perform some of her assigned duties, those duties were redistributed to other employees in AFSEO.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for race or sex discrimination. Upon review, we find that Complainant failed to show that the Agency's reasons were pretextual. Below, we will address the arguments raised by Complainant on appeal.
First, Complainant argued that the Selectee's selection was inconsistent with the vacancy announcement because: (1) SO1 and SO2 did not evaluate the applicants' qualifications based on the KSAs; (2) the vacancy announcement did not mention operational weapons experience so the Selectee's operational weapons experience was irrelevant; and (3) the vacancy announcement mentioned financial experience yet the Selectee did not have any. Regarding (1), the position description stated that the incumbent "performs duties to identify customer requirements," is a "[k]ey member of the requirements group that acts as the 'single face to the customer' for the entire organization," and "interfaces with customers, providing procedural directions and appropriate points of contacts." Given the customer-focused nature of the position, we do not find that the selecting officials' emphasis on the position's primary duties (customer management) over the KSAs (knowledge of specific software, databases, and processes) to be evidence of discrimination. Regarding (2), we note that SO1 and SO2 did not explain in great detail why they valued the Selectee's operational weapons experience. However, we note that the Selectee's operational weapons experience was only one of several reasons they gave for selecting the Selectee over Complainant. Regarding (3), the Selectee's resume reflects that he had experience organizing, analyzing, and interpreting financial data as a Customer Service Representative for the Internal Revenue Service.
Second, Complainant argued that concerns about her performance issues were exaggerated because she successfully completed her PIPs, the Agency did not restrict her duties, and some of the employees who provided affidavit testimony about her performance issues did not have firsthand experience with her work. The record contains an excerpt from the Agency's evaluation of the contract that Complainant worked on. Specifically, the Mid-Term Evaluation and Status Report for Task TEAS-07-1133 for the October to December 2008 period stated the following regarding Complainant's performance:
Junior CM Engineer has made mistakes in dealing with customers that the government leads had to remedy ... Timely action was taken to respond to government concerns about the work done by the customer management junior engineer. Continued TEAS oversight is needed for this employee ... Junior CM Engineer's performance deficiencies were identified in early Fall and the TEAS response to these were decisive and rapid. TEAS implemented a [PIP] for the junior CM engineer and made downward adjustments in her responsibilities. Others in the AFSEO CM area have assumed the workload resulting from this download. TEAS handling of the performance shortfalls were right on target.
Based on this documentary evidence, we find that Complainant had performance issues while working at AFSEO and that those performance issues resulted a PIP and in the restriction of her duties. Even if Complainant successfully completed her PIPs, we do not find that the selecting officials' consideration of her past performance in AFSEO - when evaluating her qualifications for a position in AFSEO - to be evidence of discrimination.
Third, Complainant argued that her non-selection was discriminatory because she was the only contractor not hired by the Agency into a civilian position. In her affidavit, Complainant stated that she was one of five contractors who worked as support personnel in AFSEO, that the support personnel held the same positions with the same duties and responsibilities, that she was the only support personnel who did not receive a civilian position, and that the other four support personnel were Caucasian males. We find, however, that the four contractors cited by Complainant are not valid comparators because they are not similarly situated to her. In so finding, we note that a chart listing the selection actions from 2009 to 2011 reflect that those contractors were selected for the following positions: GS-0801-13 General Engineer, GS-0301-12 Requirements Specialist, and GS-0343-12 Budget Program Analyst. Given the differences in position title, series, and grade between those positions and the GS-0303-07 Data Management Assistant position that Complainant's contractor position was converted to, we do not find that Complainant and the other four contractors are similarly situated.
Conclusion
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency's final decision because the preponderance of the evidence does not establish that race or sex discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
___9/5/14_______________
Date
1 For example, the KSAs referenced Oracle database, SQL PLUS, Crystal Reports software, EXCEL software, EVCAS software, and SEMSS and SEEK EAGLE processes.
2 We note that the Director of the Air Force Review Boards Agency signed both the final decision and the brief in opposition to Complainant's appeal. We remind the Agency that legal sufficiency reviews of EEO matters must be handled by a functional unit that is separate and apart from the unit which handles Agency representation in EEO complaints. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 1, � III (Nov. 9, 1999). The Commission requires this separation because impartiality and the appearance of impartiality is important to the credibility of the equal employment program. See id.
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0120130273
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130273