0120102230
01-23-2013
Dana Covington, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Dana Covington,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102230
Agency No. 2004-0005-2009100957
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 24, 2010 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 Program Analyst (PA), GS-0343-13, at the Agency's Office of Information and Technology facility in Washington, DC.
On January 28, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the basis of race (African-American) when:
on December 9, 2008, management denied her request for promotion, after re-classifying her position from Program Analyst, GS-343-13 to Program Analyst, GS-343-14.
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on March 24, 2010, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of race discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
The Agency noted that the Executive Program Manager stated that during the relevant time, he was Complainant's supervisor (Supervisor). The Supervisor stated at that time, Complainant worked as a Management Analyst. The Supervisor stated that in December 2005, Complainant was competitively selected by the Office of Information and Technology for a position as a Program Analyst, GS-11. The VACO Human Resources Specialist approved and signed the notification of personnel action which stated "full performance level of employee's position is GS-13." The Supervisor stated that in April 2006, Complainant was detailed to the Office of Telecommunications to serve as a Center Office Human Resources Liaison, not to exceed 120 days. The record reflects e-mail correspondence generated between Human Resources (COHRS) and Complainant revealed that COHRS did not intend to classify the position as a career ladder from the GS-13 to the GS-14 level.
The Supervisor stated that on June 9, 2006, he signed and submitted a request for personnel action to reassign Complainant to the Office of Information and Technology Telecommunications. Specifically, the Supervisor stated "it was done to put someone in our organization who would have responsibility for duties that had been formerly performed by [a former Program Analyst]." On July 9, 2006, management permanently reassigned Complainant from Management Analyst to a Program Analyst, with promotion potential to GS-13. The Program Analyst position was different from the one vacated by the former Program Analyst, and included some of the duties performed by the former Program Analyst.
The Supervisor stated that on November 1, 2006, he requested to promote Complainant from a GS-11 to a GS-12 based on "part of the career ladder position description that [Complainant] had been competitively selected on by [VACO Human Resources Specialist] on December 11, 2005." The Supervisor stated although Complainant was promoted to the GS-12 level, the personnel action retained her in the Position Description (PD) #33408 job series which did not include promotion potential to the GS-14 level. The Supervisor stated that in December 2007, he requested to promote Complainant from a GS-12 to a GS-13 level. Complainant received the promotion to the GS-13 level with no promotion potential. The Supervisor stated that during the relevant period, all payroll and Human Resources functions were moved from the VA Central Office (VAC), Office of Resources in Washington, DC to Office of Information and Technology, HCM Operations Center in Austin, Texas.
The Supervisor stated that on March 28, 2008, the Chief of Human Resources Management Division (Chief) approved and electronically signed a notification of personnel action reassigning Complainant from PD # 33410 to PD # 34438, a position with promotion potential to GS-14. The Supervisor stated he does not recall signing a request for that action and Complainant's electronic Official Personnel Folder did not contain a copy of the March 28, 2008 request. Specifically, the Supervisor stated "I do not have any record that [Chief] discussed this with me."
The Supervisor stated that in October 2008, he requested to promote Complainant from a GS-13 to a GS-14 but "I do not recall and I do not have a record as to whether she was being promoted from P.D. No. 33410 or P.D. 34438. However, I did, in fact, sign a promotion - - a request for personnel action for consideration of this personnel action." The record reflects that on December 8, 2008, Complainant e-mailed the Executive Program Manager and the Supervisor concerning the status of the requested personnel action. On December 9, 2008, Complainant renewed her inquiry when she e-mailed the Executive Business Manager, Business Functions Manager and her supervisor. The record further reflects that the Executive Program Manager responded to Complainant's e-mail saying that the promotion requested signed by the Supervisor was not legal under the merit promotion laws because there was no record of Complainant having competed for a career ladder position.
Further, the Supervisor stated that he had no knowledge of official personnel action ever being taken in connection with the promotion request that he had signed for Complainant. The Supervisor stated "regarding the belief that [Complainant] had never competed for a ladder position beyond the GS-13 level, this assertion is, in fact, correct. Had this request for personnel action been forwarded for consideration to the Cleveland business center of Human Resources Management (station 116), a review of [Complainant's] electronic position file would in all likelihood established that the OITHCM operations center-august (station 103) had approved on March 28, 2008 a notification of personnel action effectively reassigning [Complainant] from a GS-13 position with no promotion potential to a GS position description with merit promotion to the GS-14."
The Supervisor stated at that time he advised Complainant that her request for personnel action had been denied and "I would do all I could to assist her to look for other positions within the Office of Information Technology and the Department of Veterans Affairs where positions with a promotion potential of a GS-14 might be possible."
The Supervisor stated that as a result of his actions on Complainant's behalf, he received a Notice of Proposed 5-Day Suspension (later reduced to a reprimand) for knowingly engaging in prohibited personnel practices and purposely disobeying direct and specific supervisory instructions. The Supervisor stated that by e-mail, he informed Complainant that the reclassification action he signed on October 25, 2008 did not follow the Agency's regulations "for competitive reclassification actions to the best of my knowledge...I advised her that the organization chart signed by [Supervisor's second-level supervisor] in March 2008 identified her position as GS-13. I told her that it was not likely under the new organizational alignment that her position would qualify for requalifications."
Furthermore, the Supervisor denied that Complainant's race was a determining factor role in the Agency management's decision to deny her a non-competitive promotion to a GS-14. The Supervisor stated that he was notified by the Human Resources Classification Specialist that the OITHCM Operations Center - Austin had erred in their March 28, 2008 Notification of Personnel Action reassigning Complainant to the PD # 34448 because it did not make a determination as to whether a classification review had been conducted.
The Chief stated that in 2008, the Director of the Agency's Cleveland Human Resources and the Director of Personnel Administration Oversight contacted him concerning Complainant's job classification. The Chief stated that he asked his staff regarding the change in the job classification that occurred in March 2008. The Chief stated that he learned that a named Classification Specialist recently assigned to the classification section had made a handwritten entry erroneously classifying Complainant into a PD with promotion potential to the GS-14 level.
The Chief stated at that time the change in the Call Center assignment had "a mass transfer request, at least that's how we categorized it here in our office, that moved four people at the time. [Complainant] and [three named employees]." The Chief stated that the Classification Specialist also made handwritten endorsements on the other transfers because he required additional information. The Chief stated that the transfers for the three employees did not include a change in promotion potential. The Chief further stated that his staff had failed to catch the mistake and as a result his office erroneously placed Complainant in the GS-13 position.
The Chief stated that SF Form 52 submitted on behalf of Complainant should have triggered a review to ensure that the new PD to which she was moving did not require a competitive selection process to fill the position. Specifically, the Chief stated the subject SF Form 52 "should have been caught by my office. They did not review the two PDs to see if there was promotion potential. They merely, in my opinion, looked at the SF-52. And seeing that the grade was a 13 they were leaving, and a grade was a 13 that they were going into without looking further to see if it had promotion potential. That's where the breakdown occurred."
The Chief stated that because management had mistakenly moved Complainant into a job series and that the remedy was to return her to her former GS-13 position. Specifically, the Chief stated that the remedy "entails doing a transfer back to the old position that [Complainant] vacated because it is the position she was initially hired to. She wasn't eligible for the position she's been moved to. It does not change her current grade nor does it change her current step. It just changes her promotion potential to GS-14 of which she never competed for."
The Human Resources Specialist (Specialist) stated that during the relevant time she reviewed and signed Complainant's SF 52 (Request for Personnel Action) for a promotion to the GS-13 level with promotion potential to GS-14. The Specialist stated that she used Office of Personnel Management position classification standards as a reference to develop the PDs for a PA position within the office to which Complainant was assigned. The Specialist stated that during the relevant time she did not talk with the Supervisor during the time of the classification process.
Further, the Specialist stated that she returned the completed PDs to Complainant's office and within a few weeks, she received the SF 52 for the GS-13 target GS-14 position with Complainant's name attached it to. The Specialist stated that she then contacted Complainant and informed Complainant that the promotion action "could not be processed because [Complainant] is not assigned to the 13 PD that is in the career ladder for this 14. And the job that [Complainant] was in does not have promotion potential to the GS-14."
Complainant, on appeal, argued that the Agency erred in its statements concerning the testimony of the responsible management officials. For instance, Complainant disputed with regard to the Agency statement from her supervisor "which indicates the personnel action was not legal under merit promotion laws because there was no record of Complainant having competed for a career ladder position, nor was the position ever announced. With that statement the Complainant, therefore provides evidence that [Supervisor] is not a SME I the field of HR regarding the laws of merit promotion and non-competitive accretion of duties promotions procedures."
Complainant further argued that the Agency's statement that she failed to identify "a similar situation with other staff members currently on the same PD would be impossible because the PA, PD is classified to only incumbent one (1) employee, therefore it can't be multiple incumbents on the same PD at the same time." Finally, Complainant argued that the Agency did not address her harassment allegation.
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 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).
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); 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).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination. While she asserts a host of administrative errors and claims, without evidence, that this was part of a pattern of discrimination against her, she simply has not proven, by a preponderance of the evidence, that the responsible management officials' explanations of the disputed actions were pretext and that events actually occurred because of her race.
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.
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
January 23, 2013
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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