Jaunita W.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.Download PDFEqual Employment Opportunity CommissionSep 14, 20202019005450 (E.E.O.C. Sep. 14, 2020) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jaunita W.,1 Complainant, v. Michael R. Pompeo, Secretary, Department of State, Agency. Appeal No. 2019005450 Agency No. DOS-0343-18 DECISION On July 29, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 26, 2019, 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. BACKGROUND During the period at issue, Complainant worked as a Fiscal Officer, GS-13, at the Agency’s Office of Claims, Bureau of the Comptroller and Global Financial Services in Charleston, South Carolina. On July 11, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her in reprisal for prior protected EEO activity when: 1. on June 1, 2018, she was not selected for the position of Deputy Director in the Office of Claims pursuant to Job Announcement (JA) #HRSC/CGFS-2018-0008; 2. on June 1, 2018, she was not selected for the position of Chief of Audit, Distribution and Reporting (ADR) in the Office Claims pursuant to Job Announcement (JA) #HRSC/CGFS-2018-0009; 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. 2019005450 2 3. on July 16, 2018, her duties were reduced; and 4. since July 17, 2018, she has not had a weekly one-on-one meeting with her supervisor. The Agency accepted the complaint and conducted an investigation which developed the following evidence. Complainant based her retaliation claim on a previous EEO complaint, filed in 2017, concerning her working conditions. The Deputy Comptroller stated that he was aware of a complaint filed by Complainant concerning the size and functionality of her newly constructed office and said he was involved in resolving some of her issues. All the Agency management officials involved in the instant complaint denied any knowledge of this previous EEO activity. Claims 1 and 2 Regarding claim 1, the record reflects that the job announcement for the subject Deputy Director position, opened on April 13, 2018 and closed April 26, 2018. According to the position description, the incumbent would serve as the Deputy Director Chief, Claims Payment Division under the Agency’s Director, Fiscal Officer in the Office of Claims. The record further reflects that the incumbent for the position would be required to manage the Department’s domestic accounts payable operations, coordinate and resolve funding and other funding issues with bureau financial and management staff, as well as direct and manage efforts of over thirty staff members. The job announcement further specified that the incumbent would share equal responsibility for the functions and activities for the Office of Claims, including the Commercial and Employee Claims Payment Divisions. Similarly, the job announcement referred to in claim 2 indicated that the ADR Chief position opened on April 13, 2018 and closed on April 26, 2018. According to the record, the ADR Division operated within the Office of Claims and provided financial guidance, resources and services to Department-wide entities globally. The record further indicates that the incumbent for the position would be required to manage administrative support, analytical activities, coordination and compliance assessment activities in support of Department’s accounts payable operations. The selecting official for both positions convened a panel to review applications and interview candidates for the positions. The panel found Complainant to be qualified and interviewed her for both positions. According to the selecting official, the ability to build teams, to train and develop staff were the most important criteria to consider in choosing a candidate to fill each of the vacancies at issue. The interview panel found Complainant to be qualified for the Deputy Director position (claim 1). However, following the interviews, the panel found that the selectee better qualified as evidence by her expressing a clear and comprehensive vision for developing the organization and staff. The record further indicates that the Deputy Director selectee had previously worked in every operational area of the Department which the interview panel determined would aid in her success in the role. 2019005450 3 Concerning the ADR Chief position (claim 2), the panel found that the selectee had a management style and approach to supervision and team building that fit the position description. The panel found that the selectee would develop increased efficiencies and would have fewer issues with employees. Moreover, the record indicates that based on a scoring matrix developed by the interview panel, which ranked candidate applications and responses to interview questions, Complainant earned the lowest score of the candidates. According to the panel, most of Complainant’s commercial claims experience was focused on production, while the selectee expressed the best vision and plan for developing a multi-level staff. Ultimately, the selecting official accepted the recommendations of the interview panel that while Complainant was well qualified to fill both the Deputy Director position and the ADR Chief position, she was not the best candidate to fill either vacancy. Claim 3 Complainant contends that when she returned to work on July 16, 2018, following an extended leave, she learned that her duties were reduced when her supervisor announced that a colleague would be the lead employee for all fiscal year activities. According to the Agency, the year-end closing activity was an office-wide function. Complainant’s supervisor further indicated that the action consisted of several area-specific actions and coordination activities designed to “wrap-up” the annual domestic accounts payable mission of the Department. In affidavit testimony, Complainant’s supervisor explained that Complainant’s primary focus during the year-end wrap- up was conducting monthly presentations with a user group. He further averred that Complainant had never been delegated the entire responsibility for the year-end wrap up, nor were any of her comments added to the year-end evaluations. Moreover, according to Agency, Complainant’s colleague was recommended to be temporarily assigned to Complainant’s office with the goal of eventually integrating him into their daily operations. The Agency further indicated that Complainant’s supervisor explained to all managers, including Complainant, the potential role that Complainant’s colleague would take. The Agency maintains that none of Complainant’s duties were reduced as she contends. Claim 4 Complainant alleges that her supervisor had not met with her since July 17, 2018. Complainant’s supervisor contends, however, that the one-on-one meetings he previously held with Complainant were no longer necessary once the Deputy Director and ADR Chief positions had been filled. Complainant’s supervisor explained that the meetings were held to maintain communication with all supervisors to monitor staff in light of the vacant positions prior to June 1, 2018. The Agency further indicated that Complainant’s supervisor had an open-door policy and continued to meet with his senior managers, including Complainant on a case by case basis. Moreover, according to the record, Complainant was scheduled to meet with her supervisor on February 8, 2019; the date Complainant’s supervisor provided his affidavit in support of the Agency’s investigation of the instant complaint. In addition, Complainant’s supervisor indicated that his weekly management meeting schedule continued, and he had not discontinued any individual meetings. 2019005450 4 He maintained that the subject matter of the meetings may have changed, and the meetings were no longer mandatory once the vacancies at issue were filled. However, the record indicates that Complainant had scheduled meeting times with her supervisor on Fridays at 9:30 a.m. After 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a statement or brief on appeal. 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”). 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, he 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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, 2019005450 5 EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Assuming, arguendo, that Complainant established a prima facie case of reprisal for her prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for the non- selections, and for Complainant’s additional allegations of discrimination and that Complainant failed to demonstrate that any conduct on the part of the Agency was based on discriminatory animus. Regarding claims 1 and 2, the record reflects that candidates for the vacant positions were selected for interviews based on a review of their resumes, which reflected varying degrees of leadership experience, knowledge, skills and abilities. Specifically, the record reflects that the selecting official believed that the best candidate to fill the vacant positions would possess a clear vision for progress and the ability to build strong teams and to develop and train staff under their supervision. Candidates were selected for interviews, scored and ranked based on their applications and responses to interview questions. The interview panel found that although Complainant was a strong candidate for both the Deputy Director position and the ADR Chief position, the selectees were ranked higher than Complainant based in part on their overall experience having worked in each operational area of the Department, for possessing a comprehensive vision for developing the organization and staff and for expressing the best plan for developing a multi-level staff. The record further reflects concerning claims 3 and 4 that Complainant was never solely responsible for the fiscal year-end wrap-up activities. Consequently, the Agency explained that none of her duties were removed when Complainant was advised of the potential role her colleague would take in the area in which Complainant worked. The record establishes also that Complainant continued to meet regularly with her supervisor regarding her work. In sum, the record reflects that the Agency articulated legitimate nondiscriminatory reasons for its actions and that Complainant failed to establish that such articulated reasons were a mere pretext to mask intentional discrimination. Complainant has failed to demonstrate that she was subjected to unlawful retaliation as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that retaliation occurred. 2019005450 6 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 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. 2019005450 7 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 September 14, 2020 Date Copy with citationCopy as parenthetical citation