0120101247
09-12-2012
Krystal M. Isaac, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Krystal M. Isaac,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120101247
Agency No. 080001500521
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 2008 final decision, which Complainant received on January 5, 2009, concerning her equal employment opportunity (EEO) complaint. At the time of events giving rise to this complaint, Complainant worked as an Intelligence Specialist, GG-0132-12 at the Agency's Office of Naval Intelligence facility in Washington, DC. For the reasons that follow, we AFFIRM the Agency's final decision.
Complainant alleged that due to her race (Black) she was discriminated against in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. when: (1) on or about October 2, 2007, she was not selected for the position of Intelligence Specialist, GG-0132-13; and (2) she was allegedly denied the opportunity to compete for promotion to the position of Intelligence Specialist, GG-0132-13. Complainant also claimed that she was discriminated against on the bases of her race (Black) and/or reprisal (prior EEO activity) when: (3) her prior protected activity was discussed by Agency personnel during a security background investigation and incorporated in the investigation report.
At the conclusion of the EEO investigation, Complainant was provided a copy of the investigative file and requested a final agency decision (FAD). In its FAD, the Agency found that management articulated legitimate, nondiscriminatory reasons for its actions, and Complainant failed to show that management's actions were based on discriminatory or retaliatory animus. Additionally, the FAD concluded that Complainant failed to show that she was treated less favorably than others outside of her protected category under similar circumstances.
Complainant has not proffered any arguments, or offered any additional evidence in support of her appeal of the FAD. Complainant previously contended that she should have been selected for the subject GG-13 position because she was better qualified than the selectee as the selectee had no experience in the computer system that the office used. Additionally, Complainant alleged that the selectee had been pre-selected; the subject GG-12 and GG-13 positions were created exclusively for her; and after she was selected, management helped her excel by giving her awards and training that had not been made available to Complainant.
Record evidence establishes that in 2006, the selectee was chosen for a career ladder GG-12/13 Intelligence Specialist position, as a Watch Team Leader, and that she was well qualified for the position based on her considerable watch standing experience as a Petty officer in the Navy. In contrast to the selectee, Complainant did not apply for this position. According to the Agency, after the selectee's Watch Team Leader position diminished in responsibility and full-time status, management saw her as an asset, and decided to laterally move her into the GG-13 vacancy. The position was not advertised, and there was no opportunity to compete for it. While Complainant contends she should have been selected for the position, we can find no evidence to establish that management's actions were motivated by discriminatory animus based on her protected class. We note that employers have broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by a reviewing authority absent evidence of unlawful motivation. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).1
With respect to Complainant's allegations regarding a security background investigation, record evidence established that in August 2006, Complainant's first line supervisor (Sl) told the security background investigator (B-1) that sometime around June or July 2003 Complainant filed an EEO complaint in connection with her previous position. While Sl stated, during the EEO investigation, that he did not remember speaking to anyone regarding the matter, he says he would not have discussed the information unless he was responding to a specific request for information. According to B-1's report, S1, who recommended Complainant during the background investigation, could not provide any details about Complainant's EEO activity including the alleged bases.
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8-II.D.3 (May 20, 1998); see also Carroll, supra.
Here, we find that Complainant did not establish that she was discriminated against as alleged. Other than indicating, during a background security investigation, the fact that Complainant had once filed an EEO complaint, we do not find that Complainant showed that S1 engaged in behavior that was reasonably likely to deter protected EEO activity by her or others. In this regard, we note that although S1 was aware that Complainant had participated in prior protected activity, she was promoted while under Sl's supervision, despite his knowledge of her participation. Likewise, there is no indication that S1's comments about her EEO activity ever resulted in any adverse action being taken against Complainant.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that 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
___9/12/12_______________
Date
1 To the extent that Complainant alleges that the selectee was preselected, we note that while evidence of preselection may operate to discredit an Agency's explanation for its employment decision, preselection per se does not violate Title VII when it is based on the qualifications of the preselected individual and not on a basis prohibited by Title VII. See Malley v. U.S. Dep't of Housing & Urban Dev., EEOC Request No. 01973271 (Aug. 5, 1999). In this case, there is no evidence in the record to demonstrate that any preselection was the result of prohibited employment discrimination.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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