Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 29, 2014

0120120293 (E.E.O.C. Jan. 29, 2014)

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

,
Complainant,

v.

John M. McHugh,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120120293

Hearing No. 451-2012-00026X

Agency No. ARFTSAM-10JUL02949

DECISION
On July 26, 2012, Complainant filed an appeal from the Agency’s June 27, 2012 final order
concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq

. Our review is de novo. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management
Analyst, YA-0343-03, at the Agency’s work facility, Fort Sam Houston, in Texas. On August
13, 2010, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the bases of her race (Caucasian) and national origin (Hispanic)
when on May 23, 2010, she was reassigned from the position of Supervisory Budget Analyst,
YA-0560-03, to that of Management Analyst, YA-0343-03.

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). Complainant timely requested a hearing. The AJ assigned to the
case issued a decision on the record on August 18, 2011, finding that no discrimination
occurred. Complainant subsequently notified the AJ that the discovery period had not ended
prior to the issuance of the AJ’s decision. On January 12, 2012, the AJ vacated her decision.
Subsequently, on May 23, 2012, the AJ granted summary judgment, finding that no
discrimination occurred.
0120120293

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The record reveals that Complainant had been employed as a Supervisory Budget Analyst at
the Agency’s Fort McPherson facility in Georgia. On June 5, 2009, the Agency sent a
memorandum to Installation Management Command Southeast Region employees that in part
stated as part of the preparation and planning for relocation, the Installation needed to know
whether employees planned to relocate to the Plans Directorate (G-5) Headquarters IMCOM at
the Fort Sam Houston facility. The Agency stated that every eligible volunteer would be
offered a job at Fort Sam Houston. According to the Agency, the job offers would be to a
direct match position (same job series, grade and title), or an indirect match, a similar position
of the same grade or pay band, with no loss to the existing rate of base pay. The indirect
match was further defined as a position in the same or similar function with the same
qualification and skill/requirements as the employee’s current position of record. The AJ
noted that the order of potential matches would be a direct match, an indirect match, and a
constructed match. A constructed match would involve restructuring a position to fit the
employee’s current position.

Complainant elected to relocate to the Fort Sam Houston facility. The AJ noted that
Complainant’s position description at Fort McPherson had not aligned with her duties as she
was not supervising anyone. Complainant sought a revised position description that would
allow her to supervise two employees. The matter had still not been resolved after
Complainant’s relocation to Fort Sam Houston. Complainant received her reassignment to the
Management Analyst position on May 23, 2010. Complainant’s reassignment did not involve
any change to her station, branch, division, or salary.

The Agency acknowledged that Complainant did not have an accurate position description at
the time she relocated to Fort Sam Houston. The Agency further stated that pursuant to the
restructuring, there was minimal budget work available in the Plans Directorate, and that no
Supervisory Budget Analyst, series 560, existed. The AJ reasoned that Complainant was
aware of this situation as evidenced by her draft of a proposed position description for a
Supervisory Program Management Analyst position rather than a Supervisory Budget Analyst
position. The former Chief of Service Standards and Performance Results Division stated that
the Management Analyst position did not include supervisory duties. The AJ observed that
Complainant was aware and accepted that a reassignment included the possibility that she
would be placed in a position that was not a direct match to her position at the Southeast
Region. The AJ determined that the Agency articulated a legitimate, nondiscriminatory reason
for Complainant’s reassignment to the Management Analyst position.

The AJ found that Complainant failed to establish that the Agency’s explanation was
pretextual. The AJ asserted that the Agency was not bound by Complainant’s proposed revised
position description just because the matter was being negotiated prior to Complainant’s
reassignment. The AJ stated that the Agency was not required to place Complainant in a direct
position match and that Complainant did not offer evidence that the duties she was performing
at Fort Sam Houston did not constitute an indirect position match.

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With respect to Complainant’s argument that if she could not be provided with a direct match,
she should have received a constructed match, the AJ noted that the Agency was only required
to provide a constructed match if it could not offer a direct or indirect match. As to
Complainant’s contention that employees were entitled to advance notice of a reassignment and
the opportunity to reply, the AJ stated that Complainant offered no evidence that other
employees in or around May 2010 received advance notice of their reassignments. The AJ
further reasoned that Complainant failed to demonstrate that she had a valid reason for not
wanting to be reassigned from the Supervisory Budget Analyst position as she acknowledged
she was not performing that position’s duties prior to her reassignment. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that she was the only supervisory employee stripped of her
supervisory status. Complainant maintains that she and the Agency had an agreement as to the
position duties and responsibilities she would have after relocating to Fort Sam Houston.
Complainant states that had she known that the relocation agreement would not be honored as
to placing her in a direct match, she would not have volunteered to relocate. Complainant
maintains that she was under the impression that she would be assigned to the Senior Program
Analyst position duties and be responsible for the planning, developing and carrying out of cost
management initiatives, and the cultivation of close working relations between Plans
Directorate and Resource Management.

The Agency maintains that Complainant failed to establish a prima facie case of race or
national origin discrimination. According to the Agency, the relevant management officials
were not aware of Complainant’s race or national origin. The Agency maintains that
Complainant was reassigned due to programmatic restructuring events. The Agency points out
that Complainant relocated with the understanding that her position description would
eventually be changed, and that she only took issue with the reassignment once she learned the
position description did not include supervisory duties. The Agency asserts that Complainant
failed to establish that its explanation was pretext for discrimination.

ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant established a prima facie case of race and national
origin discrimination when she was reassigned from the position of Supervisory Budget
Analyst to Management Analyst. The Agency explained that the reassignment was effected
based on the Directorate’s needs pursuant to a restructuring. The Agency stated that
Complainant was aware that a direct match of her position might not be possible upon her
reassignment to Fort Sam Houston. The Agency stated that Complainant was also aware that
there would be no Supervisory Budget Analyst positions in the G-5 Plans Directorate.
According to the Agency, the change in positions in May 2010, constituted an indirect match
and did not result in a change for Complainant in terms of salary, station, branch, or division.
0120120293

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The Supervisory Installation Quality Manager noted that there was no discussion of
supervisory responsibilities prior to or after Complainant’s relocation to Fort Sam Houston.
The Director of the Plans Directorate stated that he does not recall indicating to Complainant
that she would have a supervisory position. He stated that he informed her that she would be
the Plans lead and subject matter expert in performance and cost management. We find that
the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s reassignment.

With regard to the reassignment at issue, Complainant attempts to establish pretext by arguing
there was an understanding prior to her relocation that she would retain her supervisory status.
However, Complainant has not presented persuasive evidence that such an agreement existed.
Complainant was not entitled to a direct match, and she also was not entitled to a constructed
match given that an indirect match was available. The record establishes that the budget duties
at the Plans Directorate were not a primary component of the operation. There were no
Supervisory Budget Analyst positions. Further, we agree with the Agency that the fact that
other employees received a correct position description upon arrival at Headquarters does not
establish that discrimination was involved in Complainant not receiving a correct position
description until May 2010. Upon review of the entire record, including all of Complainant’s
contentions, and the Agency’s response, we find that Complainant failed to establish that the
Agency’s explanation for her reassignment to a Management Analyst position was pretext
intended to hide discriminatory intent.

CONCLUSION
The Agency’s determination that no discrimination occurred is AFFIRMED.

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
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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 Date
January 29, 2014
Office of Federal Operations