0120130792
03-13-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120130792
Hearing No. 420-2011-00147X
Agency Nos. ARSMDC10JUN02983
ARSMDC10SEP04187
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 25, 2012 final action concerning the two captioned EEO formal complaints that claimed unlawful 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.
BACKGROUND
During the period at issue, Complainant worked as a General Engineer, GS-0801-13, at the Agency's ARSTRAT Technology Center, Space and Cyberdivision Directorate in Redstone Arsenal, Alabama.
Complainant filed two formal complaints on September 10, 2010 and November 17, 2010, respectively.
Agency No. ARSMDC10JUN02983 (hereinafter referred to as Complaint 1)
On September 10, 2010, Complainant filed a formal complaint claiming that the Agency subjected her to discrimination on the bases of sex (female) and in reprisal for prior EEO activity when:
a. on May 11, 2010, she was not selected for the position of General Engineer, GS-0801-14, Research, Development, and Acquisition, Test, and Warfighter Solutions Center, U.S. Army Space and Missile Command, advertised under Vacancy Announcement Number SCBK10002839.
Agency No. ARSMDC10SEP04187 (hereinafter referred to as Complaint 2)
On November 17, 2010, Complainant filed a formal complaint claiming that the Agency subjected her to discrimination on the bases of sex, age (over 40), and in reprisal for prior EEO activity when:
b. she was given an involuntary management directed reassignment;
a. the work she performed was given to male engineers;
b. she was denied opportunities for other job assignments and vacancies in favor of the "young engineers" whom she alleges the Command wanted to develop; and
c. she was left without a job assignment duties and without a supervisor from June 8, 2010 to September 26, 2010.
After the investigation of claims a - e, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On October 1, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Regarding claim a, there were seven candidates, including Complainant, initially considered for the position of General Engineer, GS-0801-14. A panel consisting three members was convened to review the application. After reviewing the candidates' application packages, the panel recommended five candidates, including Complainant, to be interviewed based on their scores.
The Deputy Director (male), Test and Warfighter Solution Center, was the selecting official for the subject position. Following the interview, the Deputy Director selected a candidate (male) other than Complainant for the position. The Deputy Director stated that following the interviews of the five candidates, he chose the selectee because "he came across very knowledgeable, his experience as related to the evaluation criteria and the job, has a vast experience in...prioritizing work, with organizational units, and establishing schedules and reporting, coordinating, a lot of coordination work." In addition, the Deputy Director stated that the selectee had "a lot of skills, understanding the organization and its mission. Something that is really important for this job is time management skills, and ... he came across like he knew a lot of that."
The Deputy Director stated that he did not select Complainant for the subject position because Complainant had "difficulty communicating her thoughts...and it was hard for me to follow, what she was trying to tell me" during the interview. He also noted that Complainant had little experience meeting and advising senior leaders. The Deputy Director also stated some of the experience Complainant "showed was in the form of reports, briefings, but they were limited. And one of the things that I look for in an interview is specific examples of accomplishments. And I didn't see much of that."
The Chair (female) of the review panel also sat in on Complainant's interview with the Deputy Director. She confirmed the Deputy Director's testimony that during the interview, Complainant had a difficult time articulating what she wanted to say and often her answers were not directly related to the responsibilities of the position in question.
The Director, Test and Warfighter Solution Center, was the concurring official regarding the subject position. The Director (female) stated that she concurred with the Deputy Director's decision to choose the selectee for the subject position. The Director stated that the selectee "first of all, had had prior experience doing the same type of work required for the position. He had served actually as an executive officer on a level higher than me in the past. And his protocol, admissions of the different major subordinate elements of the Command. Actually used to work for the Future Warfare Center which... is an organization that we interface with a lot in the work we do...and he had also worked at a staff level. So, he knew the Command and interfacing on my behalf in the Command. He also has prior military experience, so, he understands a lot of the interactions with the military in some instances. That's very helpful."
Regarding claim b, the AJ noted that in July 2010, the Agency offered Complainant two different General Engineer positions, one in the Cyberspace Division and one in the Flight Test Division. In an email to the Deputy to the Commander, Complainant stated that she did not feel that the offers were substantive or one that would place her under a desirable management chain that would keep her from being a victim of reprisal. Complainant stated that she would take the position in the Cyberspace Division "under protest."
The AJ further noted that as a result of the Management Directed Reassignment (MDR), a total of nine employees (six male employees and three female employees) were reassigned. Out of the nine employees, five employees were older than Complainant and three were younger than Complainant. The AJ also noted that seven of the reassigned employees did not have prior protected activity while two employees did.
The Director stated that during the relevant period, she discussed Complainant's career with her "on a couple of occasions...and assured her that we would put her in a position where there was technical work. So, that was one of the things that I made sure of as we were determining where we should place the engineers." The Director acknowledged that she was surprised when Complainant did not want to sign the reassignment memorandum in September 2009 because "I thought she would see this opportunity that we had identified with the reorganization." The Director stated that not only was Complainant was reassigned, other engineers were reassigned as part of the reorganization.
The Director stated that Agency management decided to place Complainant in the Cyberspace Directorate "because the Senior Leaders felt like that was an area of growth for the Technology Center. Furthermore, the Director stated "my perspective is that
I was looking out for [Complainant] and trying to put - - so, I was really singling her out as I worked with the other senior leaders in the organization to try to put her in a position where I thought she would have more career opportunities at SMDC."
Regarding claim c, the Director stated that she felt that the READs-Contracting Officer Technical Representative (COTR) was a "dead-end" job for Complainant...and so it was to her benefit to move on to a different division within the organization." Specifically, the Director stated "we only had two on that funding of READs. It was one of the short list programs. I didn't see career opportunities for [Complainant] there."
The Deputy to the Commander for Research, Development and Acquisition (Deputy to the Commander) stated that due to the reorganization, Complainant would have new duties in the Cyberspace Directorate and would not have any duties related to her former position.
Regarding claim d, the Director stated that the Agency had a relatively older workforce in terms of the number of employees eligible to retire and that the Agency made a concerted effort to grow its work force. The Director stated that the Concepts Analysis Laboratory (CAL) was established as an entry point for engineers, and that these CAL engineers were filling GS-7 positions. The Director stated at that time Complainant was a GS-13, and the CAL engineers' positions were not comparable to Complainant's position.
The Deputy to the Commander stated that the CAL program was created during the reorganization "to bring in engineers, mainly right out of school, whether it be right after or during the summertime or during their Masters, mostly on engineering or physical science. And those are entry level positions that we hope will get them interested in us being able to recruit them for permanent positions when they finish their schooling."
Regarding claim e, the Deputy Director stated that when Complainant's first detail ended, Agency management did not automatically issue another one. The Deputy Director acknowledged that this action was an oversight by Agency management and that it was not an act of discrimination.
The Deputy to the Commander stated that Complainant was without a supervisor because of Agency management's error and that he instructed that Complainant receive no less than an "Exceptional" rating for the relevant period. Specifically, the Deputy to the Commander stated that he gave directions that says, 'okay, if that's the Command's fault, then get with CPAC and figure out what we have to do for a performance appraisal, but it can't be lower than what [Complainant] got last time which was an Exceptional.'"
Based on these facts, the AJ found no discrimination. The AJ concluded that even if Complainant established a prima facie case of sex, age and reprisal discrimination, the AJ articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to prove were a pretext for discrimination.
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
Of note, concerning claim a, Complainant argues on appeal, as she did before the AJ, that the selectee was not qualified for the position because he did not meet the educational requirements detailed in the vacancy announcement. The record establishes that this matter was already the subject of an independent Army Inspector General (IG) investigation.
A review of the vacancy announcement indicates that the educational requirement for the subject position was the following: "only degrees from an accredited college or university recognized by the Department of Education area acceptable to meet positive education requirements or to substitute education for experience." Complainant's concern is that West Point's civil engineering program did not receive accreditation from the Accreditation Board of Engineering and Technology until October 1, 1985, which was after the selectee graduated from West Point.
However, in response to a motion to compel, Complainant and the AJ were provided with a copy of the IG report. The IG report indicated that the Army's Civilian Personnel Advisory Center (CPAC) set the procedures for reviewing the educational qualifications of applicants, like the selectee, who graduated from West Point pre-1985. The IG report stated that human resources staffers were authorized to conduct a line-by-line analysis of a pre-1985 West Point graduate's college transcript to determine if the candidate was, in fact, qualified for the position. Staffers could also use other methods to verify the qualifications of a candidate such as the professional engineering test, engineering-in-training certification or other engineer specific training/certifications. Finally, a candidate's advanced degree(s) could be considered.1 Based on these alternative methods, the AJ concluded that the selectee was determined by human resources staffers to have met the Agency's "positive education requirements" for the subject position. After careful review of the record, we find that Complainant has failed to produce any evidence that would place this issue in dispute such that a hearing would be necessary.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We note that Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's sex, age, disability and/or because of retaliatory animus due to her prior EEO activity. We discern no basis to disturb the AJ's decision.
The Agency's final action implementing the AJ's summary judgment that Complainant failed to prove, by a preponderance of the evidence, that discrimination occurred 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).
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
March 13, 2015
__________________
Date
1 The selectee in this case earned a Master of Science degree in Project Management from Colorado Technical University in 2006. The AJ further noted that the Colorado Technical University's program was accredited in 1980.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
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