Maura S.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 5, 2020

0120181941 (E.E.O.C. May. 5, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maura S.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 0120181941 Hearing No. 480-2018-00052X Agency No. ARHMPHRYS16OCT05022 DECISION On May 29, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to discrimination based on her protected class and in reprisal for prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for a different agency (the Department of the Air Force) as the Chief, Airman and Family Readiness Center, GS-0101-12, at 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. 0120181941 2 the 51st Fighter Wing, Osan Air Base in Pyongtaek, South Korea. At the time, she was an applicant for employment with the Agency. On February 6, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and in reprisal for prior protected EEO activity when: 1. on September 10, 2016, Complainant became aware that the white female who was selected as the Humphreys Army Community Services (ACS) Director, GS-0101-13, under Job Announcement No. FEFK155432731344760, had less qualifications than her and no actual director experience; and, 2. on April 19, 2017, Complainant learned that she was not selected for the Humphreys ACS Director, GS-0101-13, position under Job Announcement No. FEFK167963191884350, when she received notification from USAJobs that the recruitment had been cancelled. The Agency accepted the claim for investigation. The investigative record reflects the following pertinent matters relating to the subject claim. In July 2014, Complainant filed an EEO complaint against the eventual selectee (S1) in claim 1. At the time, S1 served as the Acting Deputy ACS Director and oversaw Complainant’s work. Complainant’s EEO complaint was later settled. Complainant stated that none of the panel members had a role in her prior EEO activity. However, Complainant felt that she had been “black balled” by her EEO activity. In March 2015, the Agency advertised a vacancy for an ACS Division Chief, GS-0101-13, position located at the Humphreys ACS. The Family, Morale, Welfare and Recreation (FMWR) Director2 (Caucasian, prior EEO activity) (RMO1), the ACS Director (Caucasian, no EEO activity) (RMO2), the Social Science Specialist (African American, prior EEO activity) (RMO3), and the Chief of Business Operations (Caucasian, prior EEO activity) (RMO4) served on the resume review and interview panel for the position at issue. Complainant applied for the position and was included on the list of qualified applicants referred to the panel for consideration. The panel used the same rating matrix to score all applications. The rating matrix included Management and Administration; Army Community Service; Program Development and Effectiveness; and, Education, with each major category having several sub- sections. Complainant was considered a qualified applicant, but the panel did not extend an interview to Complainant. Complainant asserted that she should have been offered an interview because she had previously served in a position equivalent to the ACS Director, albeit at a lower grade and with the Air Force. 2 The FMWR Director served as the director until his retirement in January 2017 and was the named responsible management official (RMO) in claim 1. 0120181941 3 RMO1 conceded that someone who previously served in an ACS Director position, or equivalent, would typically receive an interview. However, RMO1 noted that the panel was seeking candidates that had at least three years or more left on his/her tour. RMO1 explained that length of tour in South Korea was considered during the resume review because the Agency’s Installation Management Command (IMCOM) was not approving tour extensions at the time.3 If a candidate was already at, or nearing a five-year stay, it was enough to bar continuance in the selection process. RMO3 affirmed that among the qualifications, the panel was also looking for a candidate that had at least three years remaining in South Korea. RMO3 stated that during the resume review, they saw that Complainant had been in South Korea since 2010. RMO3 stated that the panel excluded applications that would not fit the five-year rule. RMO3 stated that Complainant “very well may have been more qualified [than] others, but she did not have enough time left in Korea.” She also noted that RMO1 had previously offered her the position at issue, but that she had declined. Nineteen candidates were ultimately referred, and three were selected for interviews. The selectee (Caucasian, prior EEO activity) (S1) was interviewed and selected for the position effective June 28, 2015. RMO1 stated that S1 had the highest rated application amongst the three. RMO3 noted that S1 had experience as the Acting ACS Director, and was a GS-12 employee. Additionally, S1 had at least three years left to work at Humphreys. By September 2016, S1 vacated the position. RMO1 then assigned an employee (S2) (Caucasian, no prior EEO activity) to the position in an acting role. RMO1 then re-advertised the position in December 2016. In January 2017, RMO1 retired, and a new Director (RMO5) (Caucasian, prior EEO activity) joined. RMO5 was impressed by S2’s work, noting that she had extensive program management experience, and rebuilt the ACS team while undergoing intensive reaccreditation inspection. Based on her work, RMO5 contacted the Human Resources Specialist (Asian, no prior EEO activity) of the Area III Civilian Personnel Advisory Center to seek a management directed reassignment. The HR Specialist stated that RMO5 contacted her after the announcement had closed, but before she had rated the applicants. The HR Specialist reviewed S2’s experience and education and determined that she met the qualifications of the position and was eligible for reassignment based on her grade and length of service. 3 Department of Defense Instruction (DODI) Number 1400.25, Volume 1230, DoD Civilian Personnel Management System: Employment in Foreign Areas and Employee Return Rights, dated July 26, 2012, and effective as of that date, establishes that: “Civilian employment in the competitive service in foreign areas shall be limited to a period of 5 continuous years unless interrupted by at least 2 years of physical presence in the United States or nonforeign area." The DODI clarifies that this limitation is "does not apply to Non-Appropriated Fund [NAF] employees.” Further Agency policy release on October 16, 2014, stated that "regional directors will not extend employees beyond the maximum five-year tour limit" and restricts approval of requests for extensions beyond five years to the DCG-COS (Deputy Commanding General - Chief of Staff), IMCOM.” 0120181941 4 On April 18, 2017, RMO5 requested approval from the Deputy to the Garrison Commander (Caucasian) (RMO6, prior EEO activity) to proceed with a non-competitive management directed reassignment of S2 to officially fill the position of the ACS Director. RMO6 stated that he approved the request for the following reasons: S2 was qualified and already serving in an acting role; the organization was preparing for an important inspection at the time and S2’s reassignment allowed for continued preparations without disruptions; and, S2 had previously only served in a non-appropriated fund (NAF) position. This meant that S2 had five years of longevity remaining in South Korea because NAF employees were not subject to the overseas service limitations. RMO6 approved of the management directed reassignment, and the advertisement was cancelled prior to RMO5 seeing the approved candidate list. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On August 17, 2017, Complainant timely requested a hearing. However, on that same day Complainant also submitted a request for a final Agency decision without a hearing. On October 31, 2017, the AJ ordered the Agency to produce the complaint file within fifteen days of receipt.4 The AJ noted that failure to comply could result in sanctions. On February 2, 2018, the AJ issued an Order to Show Cause for failure to comply with October 31, 2017 Order. On March 5, 2018, Complainant submitted a Motion for Sanctions to the AJ. Specifically, Complainant requested that the Commission impose sanctions on the Agency for its noncompliance and failure to respond with good cause to the AJ’s February 2, 2018 Order. Complainant requested that the Commission find default judgment in her favor and impose any other actions as deemed appropriate. On March 21, 20185, the AJ issued a Notice of Withdrawal of Hearing Request and Order to Agency to Issue Final Decision. The AJ noted that on August 17, 2017, Complainant had simultaneously requested a hearing and a Final Agency Decision. The AJ noted that subsequent interactions indicated Complainant’s wishes for a Final Agency Decision. The AJ ordered that in accordance with 29 C.F.R. § 1614.110(b), that the Agency issue a final decision within sixty days of receipt. On May 24, 2018, Complainant submitted a formal Motion for Sanctions, and requested for default judgment. On November 14, 2018, 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 as alleged. 4 At the time of this issuance, the AJ was unaware of the August 17, 2017 final Agency decision request from Complainant. 5 The order was initially signed on March 19, 2018 and corrected on March 21, 2018. 0120181941 5 CONTENTIONS ON APPEAL On appeal, Complainant did not provide any new contentions regarding her complaint. Complainant submitted her prior Motion for Sanctions in which she reiterated her argument that the Commission should sanction the Agency for its failure to comply with the AJ’s March 21, 2018 Order. The Agency did not provide an appellate brief. 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 (EEO MD- 110), 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”). ANALYSIS AND FINDINGS Delay in Issuance of Final Agency Decision (FAD) On appeal, Complainant requests that the Commission sanction the Agency for its failure to timely issue a final agency decision within the prescribed 60 days pursuant to 29 C.F.R. § 1614.110(b). EEOC regulations provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision. We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep't of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052, “the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant's claims. Id. Here the final decision was not issued until approximately four months after the deadline for its issuance. While the Agency has provided no explanation for the late issuance of the final decision, Complainant has not made a showing that he was prejudiced by any Agency delay. In this case, we find that the Agency did not act in a manner to warrant a default judgment. See e.g., Josefina L. v. Soc. Sec. Admin., EEOC Appeal No. 0120142023 (July 19, 2016), req. for recon. den'd, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency's 571-day delay in issuing 0120181941 6 a final decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay). Jocelyn R. v. Dep't of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a final decision after approximately 371 days)). While we will not impose a sanction in the present case since the delay in issuance of the FAD did not prejudice the Complainant or result in an unconscionable delay in justice, we do find the Agency’s failure to abide by the regulations reflects negatively on the Agency’s support for the integrity of the EEO process. As a result, we will notify Federal Sector Programs (FSP) which monitors the federal agencies’ EEO programs of the Agency’s failure to comply with the regulations regarding the timely issuance of its final agency decision. Disparate Treatment Complainant alleges that she was subjected to disparate treatment. 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 case 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. McDonnell Douglas, 411 U.S. at 802, n. 13; 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. 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. 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 its actions, 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. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Reprisal Complainant also alleges that the Agency retaliated against her. In accordance with the burdens set forth in McDonnell Douglas, and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, 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). 0120181941 7 Analysis Even if we assume, arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions in claims 1 and 2. Regarding claim 1, the Agency acknowledged that Complainant was qualified for the position. RMO3 also noted that it was possible that Complainant was even more qualified than others, but that her time left in service was the main factor for her application not moving forward. Management stated that the length of time an applicant had been in South Korea factored into its considerations, and that any applications that indicated a need for an extension to stay overseas would not be considered. Agency officials noted that IMCOM fluctuated with its stance on the five-year rule, but that during the relevant time, extensions were very difficult to approve. At the time of her application, Complainant would not have qualified based on this criterion in the selection process. Therefore, her application was not chosen for the next round, and she was not offered an interview. Regarding claim 2, the Agency provided that S2 was well qualified and already serving as the acting ACS Director since September 2016; the organization was preparing for an important inspection at the time and S2’s reassignment allowed for continued preparations without disruptions; and, S2 had previously only served in a non-appropriated fund (NAF) position, which was not subject to the IMCOM’s five-year policy. Additionally, management was impressed with S2’s accomplishment of rebuilding the ACS team while going through an intensive reaccreditation inspection for the Agency. RMO5 had sought guidance from the HR Specialist, and approval from RMO6 prior to her management-directed reassignment of S2. While this action occurred after the vacancy announcement had closed, RMO5 was never provided with a referral list of candidates and was unaware of Complainant’s application. Based on the record, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions in claims 1 and 2. Complainant bears the ultimate responsibility to demonstrate by a preponderance of the evidence that the Agency’s reasons were pretext for discrimination. Concerning claim 1, Complainant argued that the five-year rule was merely pretext to exclude her from the selection process. Complainant argued the IMCOM’s restrictions on the five-year policy was not as strict as management officials made it appear. Additionally, Complainant argued that she had superior qualifications and actual directorial experience, which she claimed S1 did not have. Regarding claim 2, Complainant argued that RMO5’s decision to unilaterally place S2 in the position denied her the opportunity to compete for the position. Complainant reiterated her ability to obtain an extension beyond the five-year limitation, and her qualifications to serve as the ACS Director. Complainant noted that the reasons provided were also part of a plan to exclude her based on her previous EEO activity. In non-selection cases such as the one now before us, Complainant can demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectee. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). 0120181941 8 Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Service, EEOC Appeal No. 0120141697 (Nov. 12, 2015). Despite her arguments, we determine that Complainant has failed to show that the reasons provided were pretext for discrimination. Complainant argued that she had better, qualifying experiences than S1 and S2. Here, management officials in claim 1 acknowledged that Complainant may well have been better qualified. However, the criterion that was key to moving forward in the application process was time left in a candidate’s tour stay. In this matter, S1 had the desired time left for her tour stay, whereas Complainant did not. Qualifications of the candidate was second to the time left in a candidate’s tour. Complainant also argued that the five-year policy was not as strict as management made it appear. In this regard, the Agency acknowledged IMCOM’s fluctuating stance, but the record demonstrated that IMCOM was holding firm on this stance during the relevant time. Concerning claim 2, the position was the same as advertised as in claim 1, and Complainant had demonstrated that she was qualified for the position. However, even with her experience as a former ACS Director with the Air Force, her background and experiences do not demonstrate that she is plainly superior to S2. We note that in these matters, pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of Homeland Security, EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency’s actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination. Complainant has failed in this regard. Lastly, Complainant also alleges that the Agency retaliated against her, and that she was “black- balled” from applying for the ACS Director position based on her EEO complaint against S1 in July 2014. Complainant acknowledged that none of the management officials were involved in her prior July 2014 EEO complaint, however she asserted her belief that officials must have found out about her prior EEO activity through S1. Here, Complainant’s EEO complaint was in July 2014, the Agency did not advertise the position in claim 1 until March 2015, approximately ten months later, and did not make a selectin until June 2015, nearly a year from her initial EEO activity. Even if we set aside the length of time that had passed since Complainant had engaged in protected activity, Complainant has failed to provide any documentation that would demonstrate that the responsible management officials were aware of her prior activity. Based on the record, we find that Complainant has failed to establish a prima facie case of discrimination based on reprisal. 0120181941 9 While Complainant argued that she was treated differently based on her race and her prior protected EEO activity, the record does not show that the Agency’s actions were based on discriminatory or retaliatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not discriminate or retaliate against Complainant as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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). 0120181941 10 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 May 5, 2020 Date