0120132651
10-15-2015
Lorita A.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Lorita A.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120132651
Agency No. 11-67004-00812A
DECISION
Complainant filed an appeal from the Agency's May 28, 2013 final decision concerning her equal employment opportunity (EEO) complaint. She alleged 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Inventory Management Specialist, GS-09, at the Agency's Distribution Management Center, Logistics Command (Blount Island) facility, in Albany, Georgia.
On June 8, 2011, Complainant filed this EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when, she was "not referred, considered, or selected for positions at the Marine Corps Logistics Base, Albany, Georgia from March 2000 through September 2010." On page 3 of her complaint, as her relief, she requests, as her relief, "to be [made] free of all retaliatory actions." Report of Investigation (ROI), p 47. As noted below, Complainant had prior known EEO activity.
By letter dated September 22, 2011, the Agency accepted the complaint. The Agency's notice of acceptance defined the accepted claim as pertaining only to race discrimination2 with regard to the positions listed in the EEO Counselor's report. The EEO Counselor's Report listed 93 positions, by requisition number, for which Complainant applied.
However, the Agency subsequently issued an "Amended Notice of Acceptance of Complaint."
After requesting that Complainant identify the positions and dates of the claimed discrimination, the amended accepted claims were restricted to the following specific 13 non- selections: 3
1. on December 8, 2006, Complainant was not selected for Inventory Management Specialist, SE6-GS-2010-11;
2. on February 2, 2007, she was not selected for Inventory Management Specialist, SE7-GS2010-11;
3. on June 18, 2007, she was not selected for Supervisory Inventory Management Specialist, SE7-GS-2010-12;
4. on July 17, 2007, she was not selected as Inventory Management Specialist, SE7-GS-2010-09;
5. on November 13, 2007, she was not selected as a Configuration and Data Management Specialist, SE7-GS-0301-09;
6. on November 19, 2007, she was not selected as Supervisory, Inventory Management Specialist, SE7-GS-2010-12;
7. on February 3, 2008, she was not selected as Supervisory Inventory management Specialist, SE8-GS-2010-11;
8. On February 7, 2008, she was not selected as Inventory Management Specialist, SE7-GS-2010-09;
9. on May 21, 2008, she was not selected as Logistics Management Specialist, SE8-YA0346-02;
10. on July 8, 2007, she was not selected as Supply Systems Analyst, SE8-GS-2003-11;
11. on July 10, 2008, Complainant was not selected as a Logistics Management Specialist, SE8-YA0346-02;
12. on July 11, 2008, Complainant was not selected as a Logistics Management Specialist, SE8-YA0346-03; and
13. on December 22, 2008, she was not selected as a Logistics Management Specialist, SE8-GS-0346-11.
Following the Agency's investigation of Complainant's claims, the pertinent record shows the following facts with regard to the alleged non-selections:
Complainant began her employment with the Agency at the Base beginning in July 1983. From November 2003, she held an Inventory Management Specialist, GS-09 position.
For much of the period at issue, Complainant reported to S1 (Caucasian male), who was the Division Director, Distribution Management Center. S1 stated that he had been Complainant's first-line supervisor from mid-2003 until mid-2004, and again from October 2005 until July 2007. The Deputy Director, Distribution Management Center ("S5") was his second-line supervisor. He acknowledged that he knew Complainant and her race and sex because she was one of the five civilian employees who reported to him.
Complainant had prior EEO complaints, which were against S1 (who was the deciding official for several of the selections) and S5, who had been S1's predecessor. Complainant also named S3 in her prior complaints. S3 reported to S4 (who was the deciding official for claims 9 and 11). Management does not dispute that it was aware of Complainant's prior EEO activity.
The Agency uses an on-line application system called RESUMIX. The Lead Human Resources Specialist from the Human Resources Service Center explained that potential applicants for positions submit resumes, and when there was a vacancy to be filled, the computerized RESUMIX matched resumes to the advertised job. The Specialist stated that if an applicant's name was not on the Resume Match List for a particular vacancy it is because the RESUMIX system made the determination that the applicant did not have the identified job skills to be among the qualified candidates to be referred for further consideration. A Human Resources Recruiter reviewed only those resumes that were matched by RESUMIX as having one or more identified job skills, and developed the Certificates of Eligibility to forward to the selecting official.
Claim 1: Inventory Management Specialist (GS-11) - Vacancy Announcement MR495620-C
The record shows that an Agency official ("S6") (Caucasian male) selected a Caucasian female for the Inventory Management Specialist position under Vacancy Announcement MR495620-C. Complainant's name is listed among the 18 candidates on the Certificate of Eligibility. A panel of three management officials reviewed the applications based on predetermined criteria and scored each candidate on experience, education, training and awards. The Panel Chairperson's Summary Score Sheet reveals that all three panel members gave the selectee a 35 for Experience, 10 for Training, 1 for Education and 5 for Incentive Awards for an overall score of 51. The same panel members all rated Complainant 25 for Experience, 5 for Training, 11 for Education, and 2 for Incentive Award, for a total score of 43.
Panel member 3 (Caucasian female) acknowledged that she knew Complainant's race and knew the race of the other candidates at the time of selection. She averred that "the chairperson and the selecting official did the questions and the process figuring" Panel member 2 (African American female) stated "management supplied criteria and "due to selection criteria, Complainant did not score high enough to be selected, other applicants score higher and other applicants were also black and did not get selected."
The selecting official (S6) stated that he did not choose Complainant because she was ranked 4th by the panel.
Claim 2: Inventory Management Specialist (GS-11) - Vacancy Announcement MR547301-C
Complainant applied for the subject position under Vacancy Announcement MR547301-C. On February 2, 2007, Human Resources issued two Certificates of Eligibility: an internal merit staffing Certificate and a Veterans Readjustment Act (VRA) Certificate. Complainant's name was listed only on the internal certificate. An African American male was selected, using the VRA hiring authority, for which Complainant was not eligible.
Claim 3: Supervisory Inventory Management Specialist (GS-12) - Vacancy Announcement MR675146-C
For this position, Complainant's name appeared on the resume match listing, but she was not referred to the selecting official for further consideration by Human Resources. The Human Resources personnel determined that she lacked the required time-in-grade to be considered for a GS-12 position. The staffing specialist marked Complainant's application as "Ineligible/Not Qualified, Lacks Specialized Experience." According to Human Resources officials, the Office of Personnel Management standards required at least 52 weeks experience in the next lower grade level (in this case as a GS-11) to be an eligible candidate. Complainant, a GS-09, did not have the requisite time-in-grade.
Claim 4: Inventory Management Specialist (GS-09) - Vacancy Announcement MR694107-C
On July 16, 2007, the Human Resources staffing specialist conducted a search of the resumes using two required skills: Inventory Management and Supply Systems. Complainant's name and the eventual selectee's (African American female) name appeared on the resume match list. The staffing specialist determined that both Complainant and the selectee possessed the basic eligibility requirements for the position. Both names were placed on the internal Certificate of Eligibility and forwarded to the selecting official, who was S1.
S1 developed the scoring/evaluation criteria and appointed a subject matter expert, who reviewed the resumes and scored them based on the criteria. The selectee was recommended as best qualified by the subject matter expert and was selected. Per S1's declaration, Complainant lacked experience in three areas: supply system support and assessment; conducting data analysis, and training.
Claim 5: Configuration & Data Management Specialist (GS-09) - Vacancy Announcement MR8332466-C
Complainant was seeking a lateral transfer as a GS-09. Complainant applied for this GS-)9 position and was referred to the selecting official. Eventually, all of the other GS-09 candidates dropped out of the selection process, except Complainant. However, the certificate for the GS-9 level was returned without a selection. On November 13, 2007, a black female was selected, but at the GS-7 level.
The selecting officer was the Director of the Program Support Center. The selecting official evaluated Complainant's resume and determined that the resume did not reflect preferred experience in "PCA, CMIS, IEDMICS ECP's and CDEL's."
Claim 6: Supervisory, Inventory Management Specialist (GS-12) - Vacancy Announcement MR827272-C
Complainant was matched, but not referred by Human Resources for this GS-12 position. Complainant was deemed ineligible because she lacked the required time-in-grade at the next lower grade level (52 weeks at the GS-11 level).
On November 19, 2007, the Agency selected a Caucasian female who was deemed qualified for the GS-12 position.
Claim 7: Supervisory Inventory Management Specialist (GS-11) - Vacancy Announcement MR894432-C
Complainant applied and was placed on the internal Certificate of Eligibility. The position description identified the most critical duty as supervising others. The selection panel consistently rated the eventual selectee (African American male) with higher scores in supervisory experience and, therefore, his overall score exceeded Complainant's score. On May 5, 2008, the panel recommended, and the Major (Caucasian male) selected, the selectee. The Major stated that he was aware that the selectee was African-American, but he stated that he did not know Complainant's race.
Claim 8: Inventory Management Specialist (GS-09) - Vacancy Announcement MR870361-C
In December 2007, Complainant's resume was matched with this vacancy, but she was not referred by Human Resources to the selecting official because the staffing specialist determined that Complainant's resume did not identify the required specialized experience for the position-skills in Material Capability Decision Support Systems ("MCDSS"). The HRSC staffing specialist stated that she did not know Complainant's race.
On March 3, 2008, management selected a Caucasian female. The selectee was ranked the highest of the remaining candidates who were considered. The selectee's resume reflected experience as a GS-2010-09 for ten years and identified her skills in "MCDSS, SLMP and MWS."
Claim 9: Logistics Management Specialist (YA-02) - Vacancy Announcement MR902237-C 4
On April 8, 2008, the Activity initiated action to fill the Logistics Management Specialist position in the Supply Management Center, Supply Management Operations. Complainant worked in this division.
On May 21, 2008, Human Resources issued a Certificate for an internal promotion and Complainant was certified for non-competitive selection. However, another candidate (Caucasian male) was selected.
The record includes a Memorandum from the Selecting Official, dated July 21, 2008, which states "the selection panel is in agreement that [the selectee] is the most qualified applicant for the position and is hereby recommended for selection. The stated justification was "the applicant has demonstrated possession of the skills required by this position and is capable of fulfilling all duties and responsibilities as set forth in the position description." The resume of the selectee lists his position as of May 2006 as a Supervisory Inventory Management Specialist, GS-2010-12.
Complainant was ranked 16th out of 26 candidates by a ranking panel for the position based on the information in her resume, "her current and past experience gave her a score of 6, training a score of 5, education a score of 11 and incentive awards a score of 4 [total score of 26]. These were the elements that ranked [Complainant] 16th." The eventual selectee received a score of 40.
Claim 10: Supply Systems Analyst (GS-11) - Vacancy Announcement MR019822-C
On July 8, 2008, Human Resources issued a Certificate for an internal merit staffing promotion. Complainant was among the nine candidates who were rated and ranked, based on the experience, training, education and incentive awards, by a panel. The selecting official was S1, Complainant's supervisor.
S1 selected an African American female. She was rated and ranked the highest with a score of 75. Complainant was ranked 8th, with a score of 50 out of 100.
S1 stated that Complainant lacked the experience and training required, while the selectee possessed all of the desired knowledge, skills and abilities and scored substantially higher than Complainant in the areas of experience and training.
Claim 11: Logistics Management Specialist (YA-02) - Vacancy Announcement MR902223-C
Complainant applied for this position. On July 9, 2008, HRSC SE conducted a search of the inventory of resumes, using three of four desired skills. The search returned 365 names, including Complainant's name. On the same day, the staffing specialist conducted a narrower search, which resulted in 59 names, including Complainant's name. On July 10, 2008, Human Resources issued a Certificate of Eligibility that included Complainant's name.
On September 8, 2008, the Certificate was returned unused and no one was selected. The reason provided on the certificate was: "[t]he top four potential candidates were deemed to not be a good fit for the subject position."
Claim 12: Logistics Management Specialist (YA-02) - Vacancy Announcement MR982444-C & IN
On April 2, 2008, the Agency sought to fill four term positions as Logistics Management Specialists in the YA-02 pay band. Complainant's resume was matched and her name was included in the Certificate of Eligibility sent to the selecting official.
The selecting official appointed a ranking panel. The five top-ranked candidates were interviewed. Complainant was not granted an interview as she did not receive a sufficient score.
The selectee (male, race not specified) received the highest overall score and was temporarily promoted to the subject position effective December 7, 2008. Although he was new to the Agency and had only 20 months experience acting as the Deputy Supervisor for the MRAP Program Log, he was deemed the most qualified because he had extensive knowledge of Life Cycle Logistics and the Joint MRAP Program. The selecting official stated that Complainant did not possess comparable level and depth of experience.
Claim 13: Logistics Management Specialist (GS-11) - Vacancy Announcement MR192499 - I & VR
On December 2, 2008, the Agency recruited to fill a position for a Logistics Management Specialist at the 11 level. The selecting official was the Supervisory Logistics Management Specialist (Caucasian female). Complainant was on the Certificate of Eligibility and her resume was evaluated by a panel based on experience, training, education and awards. A Caucasian female was ultimately selected. She received a much higher score than Complainant from the panel. The selectee's qualifications were deemed more substantial in terms of technical expertise and experience.
Based on the above-described evidence gathered during its investigation of Complainant's claims, the Agency concluded that Complainant was not selected for the positions at issue because she lacked the specialized experience and knowledge sought by the Agency. The Agency stated that it did not find Complainant's qualifications for the positions at issue "were so plainly superior as to require a finding of pretext." The Agency then reasoned that "the record does not reflect that the selection decisions were so questionable as to indicate that race, rather than the qualifications of the selectees, was the motivation for the selections."
The Agency found that Complainant failed to produce any evidence which rebuts the Agency's legitimate, non-discriminatory reason for not selecting the Complainant for the 13 positions accepted in her complaint. The Agency stated that "other than her assertions, opinions, and conclusions, Complainant provided no substantive evidence to establish that she had superior qualifications than the selectees for any of the positions for which she was not selected." The Agency noted that for almost every position, the Certificate issued for the positions included African-American candidates, and the selecting official or a panel member was African-American.
The instant appeal followed.
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").
Initially, we note from a procedural point of view, that the complaint listed "female" as a basis of the discrimination because Complainant checked the box for female. Consequently, at a minimum, the complaint alleges both sex and race discrimination. In addition, although it is not absolutely clear, a fair reading of page three of her complaint in her statement of the relief she was seeking, Complainant stated she "want[ed] to be free of all retaliatory action."
We review this matter de novo. Our review is based on the entire record available to us regarding Complainant's claims. We examine the claims through the lens of the federal sector mandate of Title VII's Section 717. Title VII requires that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based . . . race [or] sex." 42 U.S.C. � 2000e-16(a). To prevail in a disparate treatment claim, Complainant must establish that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
In this case, the record shows that Complainant is an African-American woman. The deciding officials were aware of Complainant's sex and race. She was determined to be qualified through the RESUMIX system, but she was either not referred or not selected by the Agency for any of 13 positions. In some instances the selection was cancelled or in others persons not within her protected group (Caucasian females, a Caucasian male and an African American male) were selected for the positions at issue.
In addition, a complainant has traditionally established a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
With regard to the reprisal claim, the record shows Complainant had prior EEO complaints that involved at least some of the selecting officials. Management acknowledged that it was aware of her complaints.
For purposes of our analysis, we find that Complainant established her prima facie claims with regard to her race, sex, and reprisal claims.
Once a complainant has established a prima facie case, the burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. at 253. The Supreme Court has described this burden as being met "if the [agency's] evidence raises a genuine issue of fact as to whether it discriminated against the [complainant]," and has noted that, "[t]o accomplish this, the [agency] must clearly set forth, through the introduction of admissible evidence, the reasons for the [complainant's] rejection." Id. at 255-56. Although the agency's burden of production is not onerous, it must nevertheless provide a specific , clear, and individualized explanation for the treatment accorded a complainant. See Complainant v. Department of Homeland Security (Federal Emergency Management Agency), EEOC Appeal No. 0120140085 (Jan. 15, 2015) (finding that the agency failed to articulate a legitimate, nondiscriminatory reason for its action when the record provided no affidavit or explanation or evidence from any agency official articulating the specific reasons which the complainant could rebut).
The responsible Agency officials articulated legitimate, nondiscriminatory reasons for its actions. In those instances where selections were made, it selected the best qualified candidates or that Complainant lacked the required skills. For some where Complainant was not referred, there appears to be a legitimate explanation - specifically for the GS-12 positions that Complainant lacked the time-in-grade to be considered eligible.
To ultimately prevail, Complainant must provide evidence that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). She has not done so here. Complainant has not shown that any alleged disparities in qualifications between herself and the selectees were "of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectees] over [Complainant] for the job in question." Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). Complainant neither argued nor produced evidence that her qualifications were plainly superior to those of the selectees for the various positions in question. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Wasser v. Dept. of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). Finally, Complainant has not produced any other evidence proving discrimination or unlawful retaliation motivated the selection decisions.
Finally, we note that, on appeal, Complainant does not really challenge the merits of the Agency's determinations. Instead, Complainant maintains that she should have received benefits under the June 2010 settlement of the Robinson v. Department of the Navy class complaint, Civil Action No. 1:02-CV-94-2 (WLS), United States District Court, Middle District of Georgia, Albany Division. We decline to address Complainant's comments regarding the class settlement as this matter is not before us. If Complainant believes she is entitled to relief under this class settlement, she should contact the attorneys for the class representative or the relevant District Court.
Accordingly, the Agency's 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 tends 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
October 15, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The Agency did not address Complainant's sex discrimination claim or her possible retaliation claim. Complainant does not challenge these omissions on appeal.
3 On appeal, Complainant does not challenge the Agency's focus on the 13 claims that were accepted. Therefore, we will accept the Agency's amended definition of her complaint.
4 As the Investigator's Declaration notes, although the named selecting official "testified that she selected [the selectee] from [vacancy announcement] MR902223, documents in the complaint file indicate that this certificate was returned unused; and the selection was made from [vacancy announcement] MR902237-C.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
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