Arlene A., Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Sep 14, 2017

0120151518 (E.E.O.C. Sep. 14, 2017)

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

Arlene A.,
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120151518

Hearing No. 440-2012-00154X

Agency No. 2011-24092-FAA-02

DECISION

On April 6, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s March 12, 2015, final order 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination.

BACKGROUND

Complainant was hired by the Agency in 2000 as an Administrative Support Assistant, FV-0303-
D, on a temporary part-time basis. Complainant worked in the Agency’s Air Traffic
Organization (ATO), Information Technology (IT) Office, Communications and Administrative
Services. From January 2004 through November 2010, Person A was Complainant’s first-level
supervisor. In 2007, Person A converted Complainant from a part-time to a full-time employee.
In October 2008, Complainant was promoted from the D pay band to the E pay band in Job
Series FV-0303 (Miscellaneous Clerk & Assistant), where she remained during the relevant time.

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.
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The FV-0303 (Miscellaneous Clerk & Assistant) job series had no further promotion potential
beyond the E pay band.

Beginning in 2005, the ATO began to reorganize its IT Office. As a result of the reorganization,
there was less of a need for Complainant to perform clerical administrative tasks and she took on
more logistics duties.

Complainant claimed that during the relevant time she worked above her pay grade.
Complainant stated she performed work in the FV-1106 series (Procurement Clerical and
Technician), the FV-0303 series and the FV-0346 series (Logistics Management) without
appropriate compensation. Complainant explained that her time was divided approximately 50%
in the FV-0346 series, 30% in the FV-1106 series, and 20% in the FV-0303 series.

Person A stated that Complainant was his “go to” person in the workplace as a “jack of all
trades.” He stated that Complainant’s position evolved because his office took on new
technology responsibilities and tasks, including the implementation of REMEDY. He stated that
Complainant offered to do some of the work and her involvement in other areas slowly evolved.
Person A stated that he did not have anyone else who had the capabilities, so he asked
Complainant to take on more tasks. Person A admitted that during 2006 to 2008, Complainant
worked above her grade level. He stated that as his office implemented the help desk, she was
doing some inventory control work; however, this diminished after the implementation of the
help desk. Person A stated that as the office moved to full IT, Complainant moved away from
her administrative role.

As a result of Complainant’s interest in performing logistics work, the Agency placed
Complainant on two non-competitive details at the G pay band in Job Series FV-0346 (Logistics
Management). Complainant’s first detail was effective December 5, 2010 and was not to exceed
June 1, 2011. The detail ended on June 2, 2011. FAA Human Resources Policy, HRPB EMP-
1.15, Temporary Internal Assignments, only permits one noncompetitive, six-month detail in a
12-month period to a higher graded position. When Complainant’s detail ended in June 2011,
she automatically returned to her position of record in Job Series FV-0303.

Person B was Complainant’s second level supervisor from December 2010 through January
2013. Person B stated that Complainant was not required to work multiple job series at the same
time since he has been her second level supervisor. Person B stated he was aware that
Complainant performed work in the 0303 and 0346 job series, but he was not aware that she
performed work in the 1106 job series. Person B explained that when Complainant returned to
her regularly assigned position and duties in June 2011, he asked her to provide administrative
support services with the new Communications and Administrative Services Group.

Person B placed Complainant on a second detail at the G pay band in Job Series FV-346
(Logistics Management) effective January 1, 2012, not to exceed June 30, 2012. Based on the
Agency’s Temporary Internal Assignments policy, January 2012 was as soon as Complainant
could be placed on a second non-competitive higher-graded detail. Person B noted that while
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this detail and the previous detail was at the G band, Complainant did not receive an increase in
pay. He stated that Complainant was basically acquiring time-in-grade with the detail.

On December 3, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (Asian), national origin (Filipino), sex (female),
and age when:

1. from her date of employment to present, she has been required to work in multiple
series (disciplines) at the same time;
2. from her date of employment to the present, she has been required to perform
work far above her pay grade, for which she has not been fairly compensated;
3. she was not given a promotion which she had been promised; and
4. the Agency granted, and then revoked a detail position that would have enhanced
her promotion potential.

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). Complainant requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision
without a hearing and issued a decision without a hearing on February 25, 2015.

In his decision, the AJ stated there was no denial that at times during Complainant’s career she
was asked to perform duties that were above her pay grade and outside her traditional job
responsibilities. The AJ also noted there was no dispute that Complainant not only accepted the
additional responsibilities but relished in them. The AJ stated that throughout the entire time
Complainant alleged she was being under paid for the work she was performing, she received
awards for her performance. The AJ stated this was the only way the Agency could reward
Complainant for her exemplary performance because she did not have the time in grade or
requisite experience to qualify for a higher graded position.

With regard to Complainant’s allegation that the Agency granted, and then revoked a detail that
would have enhanced her promotion potential, the AJ found her allegations without merit. The
AJ noted the record established that the Agency gave Complainant the experience to be able to
qualify for the higher graded position that she desired. The AJ noted that Agency policy
prevented the Agency from giving Complainant a noncompetitive detail to a higher grade for
more than six months. The AJ noted the Agency policy also required Complainant be returned
to her previous assignment at the end of her detail. The AJ stated the evidence showed that as
soon as Agency policy allowed Complainant to be placed in a higher graded position
noncompetitively, her supervisor initiated the detail. Once Complainant finished that detail, she
would have the experience to compete competitively for a promotion. The AJ noted the
evidence showed that Complainant was anticipating a noncompetitive promotion and never
applied or competed for a position that required competition. The AJ concluded Complainant
failed to provide evidence that the Agency’s articulated legitimate, nondiscriminatory reasons for
its actions were a pretext for discrimination.
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The Agency subsequently issued a final order on March 12, 2015. The Agency’s final order
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
her to discrimination as alleged.

On appeal, Complainant claims the AJ erred by determining that she failed to refute the
Agency’s legitimate, nondiscriminatory reasons or establish that such reasons are a pretext for
discrimination, for her disparate treatment claims. Complainant claims the AJ improperly
credited the Agency’s assertions that Complainant “accepted the additional responsibilities and
relished in taking them.” Complainant claims she performed higher level duties and this was
corroborated by Person A and Person C. However, Complainant notes that Person D denied she
moved away from administrative to technical work or worked outside her pay band. Thus,
Complainant argues the only way the AJ could have made a finding that there no denial that
Complainant was asked to perform duties that were above her pay grade and outside her
traditional job responsibilities was by weighing evidence.

Complainant also takes issue with the AJ’s statement that Complainant “was asked to perform
duties” above her grade and pay, noting she “accepted” the additional work responsibilities.
Complainant claims there is a dispute concerning the voluntariness of Agency employees taking
on additional duties during the reorganization. She notes the Agency claimed she volunteered
for additional duties; however, she states that they were assigned to her by Person A.
Complainant claims this constitutes a genuine issue of material issue of fact that is in dispute.

Complainant also states the AJ erred by failing to analyze her disparate impact claims.
Complainant claims the Agency’s neutral reorganization practices resulted in a disproportionate
burden on minority females. Complainant argues the gradual transition to a “full IT”
organization, which occurred between 2005 – 2006, was a neutral practice which resulted in new
duties of an increased technical and complex nature for employees. Complainant states the
additional duties she received resulted in her working above her pay grade and outside of her
assigned job duties. She notes that three others affected by the policy were in higher
grade/higher pay bands and thus, she and Comparative 1 (female, African American Secretary-
Office Automation, FV-0318-E, with promotion potential to F band) were disproportionately
impacted.

Complainant also alleges the Agency policy regarding promotions had a disparate impact on
minority females. Complainant states the Agency asserts it was unable to promote Complainant
and Comparative 1 because they needed “on paper” official experience in that field to qualify for
job opportunities. However, Complainant states that HRPB EMP-1.7 indicates that the Agency
eliminated its “time-in-grade” requirement. Thus, Complainant argues she could have satisfied
the criteria for promotion merely based on her prior actual experience performing the work.

In response to Complainant’s appeal, the Agency addresses Complainant’s contention that the AJ
improperly resolved a contested, material issue when he determined Complainant was asked to
perform duties that were above her pay grade. The Agency noted that in support of her claim,
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Complainant cited statements from Person A, her first level supervisor who stated she did
perform higher level duties, and a statement from Person D, her second-level supervisor, who
stated she did not perform higher level duties and did not work outside of her pay grade. The
Agency notes there is no dispute that Person A and Person D made those statements. However,
the Agency argues the dispute is immaterial as the Agency admitted Complainant and
Comparative 1 were performing logistics duties.

The Agency also addresses Complainant’s claim that there was a factual dispute concerning the
voluntaries of Complainant’s receipt of additional duties during the IT Business Group’s
reorganization. The Agency notes Complainant contends there are factual disputes concerning
whether she was required to work outside her pay grade or whether she volunteered to perform
work outside her pay grade. The Agency claims it is undisputed that Complainant performed
tasks outside her administrative job series - whether they were voluntary or not is not material to
her claim.

The Agency states it did not have a policy or practice requiring employees to take on additional
duties during the reorganization of the IT Business Group. The Agency explains that during the
reorganization, employees (including, but not limited to, Complainant) stepped up and performed
the additional duties that needed to be completed. The Agency states this was not the result of an
established Agency policy or practice, but rather the result of necessity surrounding a massive
reorganization of one of the Agency’s largest organizations – the IT Business Group. The
Agency notes Complainant offers no statistical evidence to demonstrate or support her
allegations of disparity. The Agency states Complainant’s arguments amount to speculation that
she and Comparative 1 were more financially impacted because the other employees who
allegedly took on additional assignments were in a higher job series and pay band; thus, they
were not adversely affected by their additional duties.

With regard to Complainant’s claims about the Agency’s promotion policies, the Agency notes
Complainant cites HRPM EMP-1.7 stating under this policy the Agency could have promoted
her and Comparative 1 based on their actual experience performing logistics work. The Agency
states this is an incorrect interpretation of HRPB EMP-1.7. The Agency states it is undisputed
Complainant did not bid on any other position within the Agency and the only way for
Complainant to be promoted was to bid on an open position as she reached the peak of her
current position’s promotion potential. The Agency states Complainant has not offered any
evidence that this policy or any other Agency policy disproportionately impacted her or other
female, minority employees.

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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9,
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§ VI.A. (Nov. 9, 1999) (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”).

Upon review of the record, we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and there are
no disputes of material fact. With regard to Complainant’s contention that there was a
discrepancy between statements from Person A and Person D regarding whether she performed
work outside of her job series, we note the AJ found in Complainant’s favor that it was
undisputed that Complainant was asked to perform duties that were above her pay grade and
outside of her traditional job responsibilities. With regard to Complainant’s contention that there
was a dispute whether Complainant was assigned the additional tasks or whether she volunteered
for the additional tasks, we find this dispute to be immaterial.

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715-16 (1983).

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); Complainant v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990).

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In the present case, the Agency articulated legitimate, nondiscriminatory reasons for not
promoting Complainant noncompetitively to a higher graded position and for having
Complainant perform work above her pay grade. The Agency stated that as a result of the
restructuring of the Air Traffic Organization, Complainant’s routine FV-0303 work load became
more logistics-related as IT for ATO became centralized. Complainant’s clerical/administrative
role began to decrease as there was less need for her to complete clerical/administrative tasks.

With regard to her claim that she was never granted a promised promotion, the record reveals
that Complainant was an E-band employee, the highest pay band that an employee in the FV-
0303 job series can obtain through promotion. The Agency policy stated that any additional
promotion beyond the E-pay band would require a competitive process. Thus, even if Person A
promised Complainant a promotion, any alleged promise of promotion was limited by Agency
policy. Moreover, Complainant has not identified a vacancy announcement for which she
submitted a bid.

With regard to Complainant’s claim that her first detail to Job Series FV-0346 was revoked, the
record shows that Agency policy HRPM EMP-1.15, Temporary Internal Assignments, states that
an individual may work no more than one six-month detail to a higher graded position in a
calendar year. Complainant’s temporary detail amounted to a temporary promotion from the E-
band to the G-band. Thus, after her six-month detail ended, Complainant returned to her position
of record. Complainant has not identified any similarly situated employee who was treated more
favorably. Complainant failed to show that any of the Agency’s actions were based on
discriminatory animus or a pretext for discrimination.

To establish a prima facie case of disparate impact, a complainant must show that an agency
practice or policy, while neutral on its face, disproportionately impacted members of the
protected class. This is demonstrated through the presentation of statistical evidence that
establishes a statistical disparity that is linked to the challenged practice or policy. Watson v.
Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (complainant must present “statistical
evidence of a kind and degree sufficient to show that the practice in question has caused the
exclusion”). Specifically, a complainant must: (1) identify the specific practice or practices
challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the
challenged practice or policy. Id. The burden is on a complainant to show that “the facially
neutral standard in question affects those individuals [within the protected group] in a
significantly discriminatory pattern.” Dothard v, Rawlinson, 433 U.S. 321, 329 (1977); see,
Complainant v. Dep't of the Navy, EEOC Petition No. 03990119 (Aug. 31, 2000).

With regard to her disparate impact claim, we find Complainant failed to identify a specific
employment practice which disproportionately impacted members of the protected class. We
note Complainant presents no statistically significant data reflecting a disparate impact on any of
Complainant’s alleged bases.

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CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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.
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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 (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, 2017
Date