0120130450
03-11-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120130450
Agency No. 12-40085-00444
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 9, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Production Controller, GS-1152-09, at the Agency's Requirements Branch, Public Works Department, Naval Facilities Engineering Command Mid-Atlantic in Norfolk, Virginia.
On March 5, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior EEO activity when:
a. on December 5, 2011, she was not selected by her supervisor for the position of Engineering Technician, GS-0802-11 (2 vacancies);
b. since August 2011, her supervisor did not provide her training for upward mobility; and
c. on February 22, 2012, the supervisor changed the requirements for the new position of Engineering Technician (Facilities Management Specialist), GS-0802-09/11.
Following the investigation of the complaint, Complainant requested that the Agency issue a final decision. In its final decision, the Agency found no discrimination. Without addressing the prima facie analysis, the Agency determined that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she 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 an 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).
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 an 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 a 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); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim a, the Agency noted that Complainant's supervisor was the selecting official, and he implemented a rating panel of five members, including himself. The panel interviewed four candidates, including Complainant. The supervisor stated he implemented a panel because he "wanted to make sure that I was fair to all the candidates in that I gave everyone an equal opportunity to talk about their background, and I wanted the individuals that were on the rating panel to understand what people's background were as well." The candidates were asked the same questions which each panel member scored individually. The record reflects that the two top candidates with the highest ranking scores were selected for the subject positions while Complainant was ranked fourth with the lowest score.
The supervisor stated that one of the interview questions was "how do you use your strengths to better perform your work?" The supervisor stated that Complainant's response was "I work to the best of my ability...And I ask: those who know. And I was looking for [Complainant] to articulate what her strengths were and how she used them to perform her work better. And she just responded that she works to the best of her ability."
Further, the supervisor stated that one of the two selectees stated that his strength was that "he's a good communicator and he knows who to go to, to find out answers to the question. [Second selectee] talked about interfacing with his peers and communicating with those that do similar work around him and how important that was in public works."
The supervisor stated that he chose the two selectees because he found them to be the best qualified. The supervisor stated that the first selectee's experience "is extremely broad in different career fields in different industries. And if you look at his resume, he's probably - - he is the most qualified candidate we had. [Second selectee] sat in his position as a preventative maintenance - already as a coordinator - - already as engineering technician, which is what this position is. So he already was an engineering technician doing that kind of work in the preventative maintenance realm which is responsible for developing and setting up the work plans that are going to describe the maintenance of the equipment that the FMS [Facilities Management Specialist] is going to be responsible for managing."
The supervisor stated that he did not select Complainant because "I think it would be an inability to answer the questions as they were posed in one part. It appeared [Complainant] didn't understand the question. And also, I don't think she explained herself fully. She gave very short answers, and I was unable to - - in some of the questions, she just answered that she had never done things. So it was a general inability to answer questions we asked them and to kind of show us that she had the background that was what we were looking for, for someone who was going to be a customer liaison in facilities." Furthermore, the supervisor stated that Complainant's sex and prior protected activity were not factors in his decision to select two selectees for the subject positions.
With respect to Complainant's allegation that it was inappropriate to have Facilities Management Specialists on the panel, the supervisor stated "I believe it's completely appropriate. They understand the work. And they reviewed all the candidates, not just one." The supervisor stated that after interviewing the candidates, the panel provided feedback and from there he made the decision to select the two selectees.
One of the other four panelists stated that the supervisor provided everyone a list of interview questions to ask the candidates. The panelist stated that the two selectees performed far better during their interviews than Complainant. Specifically, the panelist stated that Complainant did not elaborate her responses to the panel. The panelist stated in regard to scoring the candidates' responses was based on what the panelists "were looking for or I was looking for a more elaborate answer. And I mean, that's what I based it on. It was based on 'describe your experience,' you know, and - - it says, use Maximo [a computer program] since 2004 would be the one line I'd get. And it was really no elaboration. Where the other guys would go in and elaborate on what they did, what they used the computers for. Again, I know what [Complainant] does. But keeping it all in fairness, I had it in my mind as though, okay, I got to approach this as though I don't know what these people do. That's the way I look at it."
Regarding claim b, the record reflects that Complainant's Individual Development Plan (IDP) dated December 23, 2011, covered the development period fiscal year 2012 through fiscal year 2014. The IDP reflected that Complainant was required to take a Financial Management Basics course.
The supervisor stated that during the relevant period Complainant only made one request for training. For instance, the supervisor stated that Complainant requested a one-week resident course in financial management but "I didn't respond either way. And the reason is because I wasn't sure whether - - pending this case, whether she was going in the FMS direction or in the financial direction as we had talked about." The supervisor further stated that the training Complainant requested was not DAWIA training, and that she had not requested any other training courses.
Regarding claim c, the supervisor denied Complainant's claim that he changed the requirements for the new position of Engineering Technician (Facilities Management Specialist), GS-0802-09/11. Instead, the supervisor stated that the product line made the changes. Specifically, the supervisor stated "our product line. So, they make that decision for all of the FECs. All of the engineering commands, they do that for all of us. They send us the job description that needs to be posted because they are trying to harmonize them across the different public works branches."
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
Moreover, we note that Complainant, on appeal, raises new claims, including claims that she has been subjected to retaliation by the supervisor for filing an EEO complaint, and on February 3, 2012, she received a proposed 3-day suspension. However, these new claims were not previously raised by Complainant and we therefore will not address it as they were raised for the first time on appeal. Complainant is advised that if she wishes to pursue any additional claims, she should initiate contact with an EEO Counselor thereon.
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 11, 2015
__________________
Date
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0120130450
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130450
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