Marie R.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Nov 16, 2020

2019005339 (E.E.O.C. Nov. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marie R.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency. Appeal No. 2019005339 Hearing No. 560-2016-00318X Agency No. NGAW-15-S09 DECISION On July 12, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 13, 2019 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. BACKGROUND Complainant worked as a Visual Information (VI) Specialist, PB-3, at the Agency’s Data Integration Branch in Arnold, Missouri. On July 18, 2015, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of sex (female) and age (54) by not selecting her for a PB-4 Lead Analyst Position on March 23, 2015 and by denying her career development opportunities between January and March 2015. 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. 2019005339 2 On September 4, 2015, she amended her complaint to include an allegation that she was subjected to reprisal for prior protected EEO activity when, on July 22, 2015, a Lead VI Specialist who was not her supervisor told her that she was not doing her work and needed to do her job. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but on December 21, 2018, the AJ assigned to the matter remanded the complaint to the Agency, and 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 or reprisal as alleged. Incident (1a) (Non-Selection): Complainant claimed that she applied for the Lead position, made the certificate of eligibles and was interviewed by a four-person panel that included the Media Division Chief who served as the selecting official. She acknowledged that the questions asked during the interview were relevant to the position. She was informed on March 23, 2015 by the Division Chief that she was not selected. The Selectee was a younger male applicant. Complainant averred that she had extensive experience in the technical areas relevant to the position, including developing standard operating procedures, chart assembly, data organization, and specification writing. She also stated that the Selectee and one other applicant had been given opportunities to learn processes that she was not given, which resulted in these two individuals having an unfair competitive advantage in the selection process. IR 107-09, 111-19. The Division Chief and the members of the selection panel asserted that while Complainant was among those considered best- qualified for the position, her interview performance was not as strong as those of the Selectee and the other applicants. These officials, as well as the Selectee and the other applicant, denied that they were given any advantage in the selection process. IR 162, 175-76, 178, 180, 192-93, 208- 09, 216-19, 224-26, 231-33, 239-40, 249-57. Incident (1b) (Training and Development Opportunities): Complainant alleged that she was never given certain training and development opportunities that other employees such as the Selectee and the other applicant were given. In particular, she stated that she was never given the opportunity to work on development of software flows, technical support, or workflows and processes. She maintained that the Selectee and the other applicant were given preferential project assignments and were allowed to attend conferences while she was not. IR 120-29. Complainant’s Branch Chief averred that Complainant was one of five people that he had trained, that Complainant was trained on file transfers and was approved for data transfer agent positions, that Complainant was the project lead in a scanning and file transfer projects, and that she had been recently assigned as a project lead for print-on-demand file publishing and conversions. IR 151, 153. The Division Chief, the Lead VI Specialist, the Selectee and the other applicant averred that all division personnel were given opportunities to learn processes, including Complainant, that Complainant’s performance was above average, that she was not given the opportunity to work on software flows and processes due to system proprietary information to which she was not privy, and that the Selectee and the other applicant had requested and had shown an aptitude for the assignments that they were given. IR 176, 181-85, 196-200, 241, 258. 2019005339 3 Incident (2) (Retaliatory Comments): Complainant alleged that on July 22, 2015, she overheard the Lead VI Specialist and the Selectee discussing their desire to eliminate her from the downloading scan file process, She also claimed that when she asked the Lead VI Specialist who made the decision to take the downloading files away from her, the Lead VI Specialist stated loudly that she, Complainant, was not doing her job and told her to get it done. IR 130. The Lead VI Specialist acknowledged that he had told Complainant to do her job and get her work done. He averred that her supervisor had assigned her a project that was time sensitive and that days later, Complainant had still not completed the assignment. He further averred that when he asked Complainant about it, she started screaming at him that “he wasn’t her boss,” and that in response, he told Complainant that he just needed her to do her job. In addition, the Lead VI Specialist reported that Complainant continued to yell at him and follow him back to his desk. IR 201. The Branch Chief acknowledged having told Complainant that he “had a problem with her anger.” IR 155. ANALYSIS AND FINDINGS Standard of Review 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. (Aug. 5, 2015) (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”). Disparate Treatment 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, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Branch Chief, the Media Division Chief, and the other named officials articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Regarding incident (1a), the Division Chief stated that although Complainant was among the candidates considered highly qualified for the Lead position, her interview performance was not as strong as those of the Selectee and most of the other applicants. For example, the Division Chief noted that Complainant did not expound on her experience and knowledge during her interview. 2019005339 4 Further, panel members viewed her responses as timid due to nervousness, lack of knowledge, or inaccuracies in her resume. As a result, panel members did not perceive Complainant’s interview well based on her failure to demonstrate personal confidence for this position in a leadership capacity. Concerning incident (1b), the Branch Chief, the Division Chief, and other witnesses all stated that Complainant was given training and development opportunities comparable to those given to the applicants, with the exception of work with a certain contractor who possessed proprietary information that only certain employees had access to. As to incident (3), the Lead VI Specialist had stated that he was merely urging Complainant to finish a project that was running late. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den’d. EEOC Request No. 0520080211 (May 30, 2008). When asked why she believed that she had been discriminated against with respect to incidents (1a), Complainant replied that the Agency was trying to hire people who “grew up in the computer age” and that there were no female employees at Pay Band 4 in her division. IR 119-120. When asked the same question regarding incident (1b), Complainant stated that the Selectee and the other applicant were repeatedly nominated and sent for technical training while she was not. IR 129. As to incident (2), Complainant asserted that the Lead VI Specialist’s publicly disparaging her work was an act of reprisal. IR 132. Beyond these unsupported assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the explanations provided by the various management officials named in her complaint or which cast doubt on the veracity of these individuals as witnesses. We therefore agree with the Agency that the evidentiary record is not sufficient to support Complainant’s claim that she was subjected to discrimination or reprisal as alleged. Furthermore, to the extent that Complainant claims that the alleged incidents constitute a hostile work environment, the Commission notes that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), a claim of hostile work environment must inevitably fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by Agency management were motivated by discriminatory or retaliatory animus. 2019005339 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2019005339 6 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 16, 2020 Date