0120132661
09-10-2015
Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 0120132661
Hearing No. 471-2012-00068X
Agency Nos. YS-10-0060
YS-10-0074
DECISION
On July 1, 2013, Complainant filed an appeal from the Agency's May 22, 2013, final decision concerning her equal employment opportunity (EEO) complaints 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an Applicant for Contract Administrator positions with the Agency's facilities in Florida, South Carolina and Georgia.
On August 23, 2010 and November 12, 2010, Complainant filed two EEO complaints alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (depression and anxiety), age (51), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when she was subjected to a hostile work environment.1 In support of her claim of harassment, Complainant alleged the following events occurred:
1. On May 18, 2010, Complainant became aware that she was not referred for the position of Contract Administrator, GS-11, in Greenville, South Carolina, as advertised under Job Announcement Number JOASWH810YS235032.
2. On June 9, 2010, she was given a short period of time to respond to the Selecting Official for the position advertised under JOASWH81OYO127570 regarding granting permission to speak with her previous supervisor and advised that her application would not be considered if she failed to respond or declined permission.
3. On June 23, 2010, Complainant became aware that she was not selected for the position of Contract Administrator, GS-11, in Smyrna, Georgia, as advertised under JOASWH810Y0127570.
4. On or around July 30, 2010, the Selecting Official for JOASWH810Y0127570 refused to respond to her request for feedback concerning the selection process and specifics regarding her non-selection.
5. On August 2, 20l0, she was subjected to harassment when she received a letter from the Agency's Representative directing her to contact the Representative on all matters by phone and refused to respond to her inquiries in writing.
6. On November 22, 2010, Complainant became aware that she was not selected for the position of Contract Administrator, GS-11, in Marietta, Georgia, as advertised under JOASWH810P6466890.
7. On November 24, 2010, she became aware that she was not selected for the position of Contract Administrator, GS-11, as advertised under JOASWH81 OP7584256D.
8. On November 30, 2010, she became aware that she was not selected for the position of Contract Administrator, GS-11, in Orlando, Florida, as advertised under JOASWH810P6633247.
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 timely requested a hearing. The AJ had scheduled the hearing. However, before the hearing, Complainant submitted a request for a decision on the written record by the AJ. The AJ contacted Complainant to clarify that, at this point, a request for a decision without a hearing is untimely raised. She also noted that she had rejected the Agency's motion for summary judgment. Therefore, if she submitted a withdrawal, she would be withdrawing the hearing request and the matter would be remanded to the Agency for a decision. Later that day, Complainant faxed a copy of her withdrawal of the hearing request. Consequently, 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 as alleged.
This appeal followed. On appeal, Complainant submitted a copy of the Agency's final decision. On her copy, Complainant asserted that she did not withdraw her hearing request. She did not provide any additional arguments but underlined phrases within the decision without making any specific comment. The Agency asked that the Commission affirm its decision finding no discrimination.
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").
Withdrawal of the Hearing Request
On appeal, Complainant indicated that she did not withdraw her hearing request. A review of the hearing documents clearly indicated that she contacted the AJ in order to cancel the hearing in favor of the AJ issuing a decision without a hearing on April 22, 2013. The AJ emailed Complainant and the Agency stating that the Agency had filed a motion for a decision without a hearing which the AJ denied noting that there were material facts in dispute. As such, the AJ determined that summary judgment was not appropriate. A hearing was scheduled for April 24-25, 2013. The AJ clarified that if Complainant still wished to withdraw her hearing request, the AJ would cancel the hearing and remand the matter to the Agency for a final decision. Later, on the afternoon of April 22, 2013, Complainant submitted a signed withdrawal request. As such, the AJ cancelled the hearing and remanded the matter to the Agency. Upon review of the record, Complainant was clearly informed of the consequences of withdrawing the hearing request by the AJ. Complainant submitted the signed "Notice of Waiver of Hearing" following the AJ's clarification. As such, we find that Complainant withdrew her hearing request.
Harassment
It is well-settled that harassment based on an individual's race, sex, disability, age and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on her protected bases and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. . See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Upon review of the record, we find that Complainant failed to provide any evidence that the alleged actions occurred because of her membership in her protected classes and/or her prior EEO activity. Therefore, we conclude that Complainant has not established that she was subjected to harassment as alleged.
Non-Selections
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (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 Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). The Agency indicated that Complainant failed to be referred for consideration for several of the positions for which she applied. The Agency indicated that Complainant's resume did not meet the education requirement for the positions in question. The one position for which she was referred, the Selecting Official indicated that he learned during an interview with Complainant's supervisor that she had performance issues before she was removed. As such, they chose the Selectee. We find that the Agency has articulated its legitimate, nondiscriminatory reasons for its actions. We turn to Complainant to show that the Agency's reasons were pretext for discrimination. Complainant argued that she was wrongfully excluded from consideration. She noted that she had previously been in the position and was excused from the education requirement. Upon review of the record, we find that Complainant's resume was electronically excluded from consideration for the positions because she did not meet the education requirement. Complainant correctly indicated that she is excluded from that requirement. However, Complainant has not shown that the electronic screening of her resume was due to her protected bases and/or her prior EEO activity. Therefore, we conclude that Complainant has not established that the alleged actions were discriminatory based on her race, sex, age, disability, and/or prior EEO activity.
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 finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M.
Carlton M. Hadden, Director
Office of Federal Operations
September 10, 2015
__________________
Date
1 The record indicated that the Agency accepted and consolidated the EEO complaints.
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