Tammy S.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Jun 30, 2020

2019001781 (E.E.O.C. Jun. 30, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tammy S.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2019001781 Agency No. DLAR-18-0029 DECISION On February 18, 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 January 16, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Assistant, GS-0344-06, at the Agency’s Aviation Division in Jacksonville, Florida. On January 10, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), and in reprisal for prior protected EEO activity when: 1. From May 2013 to November 2017, the responsibilities of Complainant’s position as a Management Assistant, GS-06, were increased without a position upgrade; 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. 2019001781 2 2. In June 2017, Complainant’s second-level supervisor (S2) denied Complainant’s request to attend the Blacks in Government (BIG) conference; 3. During January, August, and November 2017, S2 delayed and denied Complainant’s requests for tuition assistance (TA) and approval; 4. Complainant’s direct supervisor (S1) asked Complainant to negotiate her request for one hour of fitness for Monday and Tuesday and an alternate work schedule (AWS) with Friday as her regular day off; 5. S1 denied Complainant’s request to update her telework from situational to reccurring; 6. On December 8, 2017, S1 and S2 rated her as three on all of her job elements; 7. On October 20, 2017, the Command Master Chief asked Complainant after meeting with S2 if Complainant was willing to leave the Agency to get a higher grade; and 8. Beginning in December 2017, S2 only spoke to Complainant when it was necessary. In Claim (1), Complainant asserted that she served as the Commander’s Administrative Assistant and assists the Management Analyst with preparing reports. Specifically, the Management Analyst performs all necessary research, and Complainant inputs the data into documents. However, the Management Analyst position had been vacant for a long time when Complainant came on board, and she performed Management Analyst duties. Complainant sought promotion to the GS-11 Management Analyst position, but the Commander at the time (C1) told her that she did not qualify because the position required a bachelor’s degree. When the Agency hired a GS- 11 Management Analyst, according to Complainant, the person spent all his time on the internet and the Commander did not assign him any duties. Complainant claimed that C1 told the incoming Commander (C2) that Complainant had been working outside of her position description, and C1 wanted to promote Complainant because he did not want any grades below GS-7. Complainant claimed she asked for a desk audit, but the Customer Account Manager (CAM) said that the Agency does not perform desk audits and suggested that Complainant should immediately stop performing higher-grade duties. After hearing CAM’s suggestions, C2 said, “if you stop we’re going to be screwed.” C2 denied working Complainant outside her position description. C2 conceded that Complainant believed she was working outside her position description but directed Complainant to speak with her first-line supervisor. C2 further asserted that the facility “did not have the authority to accrete or promote anyone into a GS-11 Management Analyst position.” 2019001781 3 Complainant’s first-line supervisor, the Deputy Commander (DC), asserted that Complainant was working the duties outlined in her Management Assistant position description. DC denied asking Complainant to work outside her position description. After Complainant provided DC with a GS- 11 Management Analyst position description, DC inquired with Human Resources to determine if they could use that position description. Human Resources advised him that was not possible, and at best, they “would need to request authorization for a new billet for a Management Analyst which would be openly competed, and she would have to apply.” In Claim (2), Complainant claimed that the BIG conference was a week-long conference in Atlantic City, New Jersey, and included a Project Management course Complainant wanted to take. C2 informed her that the Agency was not sending anyone to the BIG conference and that Complainant could take the Project Management course on her own time. Complainant stated that no one has been allowed to attend these conferences but that C2 approved more men than women to travel to trainings. C2 explained that Complainant’s position description “does not rate Project Management training.” C2 also denied telling Complainant to pay out of pocket. As to Claim (3), the Agency has a Tuition Assistance policy in which it provides up to $4,700 annually toward an undergraduate program or $7,000 annually toward a graduate program, but the courses must be related to the employee’s position. On February 22, 2017, Complainant sought Tuition Assistance for a course, Critical Issues in the Criminal Justice System. However, the Training Officer denied the request on March 1, 2017. Complainant had another request denied on August 30, 2017 because Complainant did not submit the request more than 30 days prior to the start of the class. On another occasion, C2 did not sign off on a Tuition Assistance request until five days prior to a class. C2 insisted that Complainant was fully aware of his inability to approve Complainant’s courses because Complainant had once submitted C2 as her first-line supervisor, which he was not. After Complainant learned the correct procedure, she submitted her requests with the correct first-line supervisor and with C2 as second-line supervisor. C2 also affirmed that he was unable to approve Complainant’s requests because he could not access the requests. After multiple tickets to IT, C2 gained access to the training requests on November 14, 2017, and approved the request that day. Regarding Claims (4) and (5), Complainant explained that employees could work three alternate work schedules. They could either work four ten-hour days per week, work five nine-hour days one week and the following week work three nine-hour days, one eight-hour day, and have one day off, or they could work a flex schedule in which they work any eight hours in a day, five days a week. Complainant sought to work four ten-hour days with recurring telework and two hours of personal fitness. C2 wanted to know why Complainant sought to change her schedule and asked if it was negotiable “because it would leave them in a crunch.” C2 figured that the schedule would result in Complainant being in the office only 35 percent of the time. In response, Complainant said her requests were non-negotiable. 2019001781 4 C2 approved Complainant’s requests for four ten-hour days and personal fitness but denied her request for recurring telework. Instead, Complainant could perform telework on a situational basis. In Claim (6), Complainant claimed that she always received a “Fully Successful” or “3” rating. This year in particular, however, was “the first year we had to have a sit-down conversation with our supervisor regarding expectations and goals.” DC told Complainant that she needed to improve on several elements if she was to receive a rating of “4” out of “5” on her year-end appraisal. DC also said no employee would receive a rating of “5” or “Outstanding,” and the most any employee could receive would be a 4. Complainant objected that she was the last employee to receive a mid-year review and had less than three months to bring her performance up to a 5. DC denied saying that no employee would receive a 5, but “did try to explain that the system is not designed for everyone to be graded as 5.” DC noted that the meeting was a mid-year and an opportunity to share observations on areas that could be improved. As one example, DC observed that they were trying to schedule a conference room, but the contact person had not returned Complainant’s telephone call. DC suggested that Complainant could have walked to the person’s desk because she sits around the corner. As to Claim (7), Complainant argued that the Command Master Chief (CMC) asked Complainant how much money she made, her career progression, and her educational background. Complainant considered these questions to be personal and based on issues Complainant had brought up to the EEO counselor. Complainant claimed that the CMC told Complainant that he had a friend who could set Complainant up with a job at the Regional Legal Services Office. With respect to Claim (8), Complainant asserted that C2 would often ask Complainant for her personal point of view regarding the staff, and that they worked closely together. However, immediately after Complainant filed her complaint, C2 cut off all contact and directed all communications through DC. C2 denied the allegation and asserted that he gives Complainant, and all his subordinates a holiday card and a $25 Starbucks gift card out of his pocket. 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 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination and reprisal as alleged. The instant appeal followed. 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 2019001781 5 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”). Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. 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 pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We find that the Agency articulated, legitimate, non-discriminatory reasons for its actions as were set forth in detail above. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged. 2019001781 6 Furthermore, to the extent that Complainant claims that the alleged incidents constitute a claim of harassment, the Commission notes that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), a claim of hostile work environment must inevitably fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by Agency management were motivated by discriminatory or retaliatory animus on any of her alleged bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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). 2019001781 7 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 (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 June 30, 2020 Date