Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.

Equal Employment Opportunity Commission

Jul 22, 2015

01-2013-2764-0500 (E.E.O.C. Jul. 22, 2015)

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

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.

Appeal No. 0120132764

Agency No. HS-USCG-22522-2012

DECISION
Complainant filed an appeal from the Agency’s May 9, 2013, 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. 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 decision finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation
Assistant-Lead, GS-08, in the Quality Assurance division of the Transportation Branch:
Personal Property Shipping Office (PPSO) in Alameda, California.

Complainant arrived at the Agency in 1997 as a Supervisory Transportation Assistant (TA),
GS-08, from the Naval Supply Center Oakland as the result of a BRAC (base) closure in
Oakland, California. From March 31, 1997 until August 12, 2010, Complainant performed
the duties of the Inbound Supervisor/Transportation Operational Personal Property System
(TOPPS) Administrator and Quality Assurance (QA) Assistant.

On August 12, 2010, the Agency issued Complainant a new Position Description (PD), which
changed Complainant’s title from Supervisory TA to the title of TA-Lead. Complainant’s new
PD included her QA duties, but she stated that she no longer performed supervisory duties and
lost the title of “supervisor.” Complainant’s grade, step, salary, and duty location remained
the same.

0120132764

2
In April 2012, Complainant and her subordinates filed an administrative grievance regarding
the Agency’s failure to respond to their request for reclassification of their positions, because
they were performing duties that were not included in their PDs.

On September 12, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), and age (54)
when:

On April 27, 2012, Complainant became aware that for the past 14 years, she had been
performing duties of a Supervisory Traffic Management Specialist (STMS), which was
classified at the GS-2130-11/12 grade levels, without receiving commensurate pay, and
the Agency did not reclassify or upgrade Complainant’s position in response to her
request.

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 as
alleged.

On appeal, Complainant claims the investigator was selective in which co-workers she
interviewed since the investigator did not want repetitiveness in the investigation. Complainant
states the investigator refused to contact those individuals who no longer worked for the
Agency. Complainant also states that she provided documentation from 1997 to present in the
form of two bound volumes to the investigator which were found to be cumulative of other
documentation in the file and were returned to Complainant. Complainant states she
resubmitted the documentation on appeal for consideration.

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. (November 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”).
At the outset, we find the record in the present case was fully and adequately developed.
Although Complainant contends the investigator refused to contact those individuals who no
longer worked for the Agency, she failed to identify such individuals or indicate why such
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3
information was relevant. Moreover, we note that by her own admission some, if not all, of
the individuals Complainant allegedly sought to interview were no longer employed at the
Agency.

To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). 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, 134
(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); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy

,
EEOC Request No. 05950351 (December 14, 1995).
In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its
actions. The Traffic Manager (TM) explained that in 2010, PDs had to be rewritten because
of “CRRT modernization.” As a result, Complainant rewrote her PD to reflect what she was
doing and sent it to the TM, who forwarded it to the classifiers at Headquarters Human
Resources. The TM noted that Complainant indicated she supervised six employees, when she
actually supervised two employees. The TM explained this discrepancy occurred because
Complainant was managing the QA complaint forms on all QA issues for the entire office, and
Complainant interpreted those actions as “supervising” those employees; however,
Complainant did not handle performance appraisals or leave issues for those employees. The
TM indicated that an individual must have a certain number of subordinates to be considered a
“supervisor,” and she informed the classifiers that Complainant supervised only two
employees. Finally, the TM acknowledged that the process of attempting to upgrade positions
has been “going on since 1997,” and has been extremely frustrating for the entire office.

The Commanding Officer (CO) confirmed that in 2010, the Agency made a nation-wide
determination that a civilian member must have five to seven direct reports in order to be
considered a supervisor. He stated that he is currently evaluating the entire Transportation
Branch job responsibilities because so much confusion exists between members in the
Transportation Branch. The CO asserted that he will ensure the PDs are adjusted to match the
appropriate grade level of the billet, but the current grade levels will not be “expanded” or
“increased.” Finally, the CO noted that the Agency has been through many “modernizations”
in recent years, which created turmoil and resulted in discrepancies similar to the
Complainant’s situation.

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Upon review, we find Complainant failed to prove by a preponderance of the evidence
management’s legitimate, nondiscriminatory reason was a pretext for discrimination based on
her race, sex, or age. We note Complainant did not identify any similarly situated employees
who were treated differently. Specifically, we note that based on the statements from
supervisors and other Transportation Branch employees, the ongoing classification issue
appears to have affected the entire branch, causing frustration for many employees. In
addition, we note that in her affidavit Complainant acknowledged that there were no higher-
graded employees performing the same or fewer duties than she was. In the present case,
Complainant produced no evidence to suggest that the issues surrounding her PD and
reclassification request are related to her race, sex, or age.

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

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).
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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

Date
July 22, 2015