Sylvia A. Keller, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMay 31, 2007
0120071197 (E.E.O.C. May. 31, 2007)

0120071197

05-31-2007

Sylvia A. Keller, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Sylvia A. Keller,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120071197

Agency No. 056925000618

DECISION

On December 28, 2006, complainant filed an appeal from the agency's

November 21, 2006, 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. The appeal is deemed timely and is

accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,

the Commission AFFIRMS the agency's final decision.

ISSUES PRESENTED

The issue presented by this appeal is whether the agency discriminated

against complainant when she was not promoted to a higher grade level

although she was allegedly doing the work of a higher graded employee.

BACKGROUND

At the time of events giving rise to this complaint, complainant

worked as a Personnel Security Assistant, DG-02, at the agency's Space

and Naval Warfare Systems Center facility in New Orleans, Louisiana.

Complainant contends that she had been performing all duties related to

personnel security since 1998. She claims that, in May 2003, two Black

females were reassigned to her organizational unit and were performing

the same duties as she was but they were being paid significantly more.

One of these employees was assigned as her supervisor (S) but she had

no background in personnel security. The other employee (B1) also had

no background or experience in security or personnel security, yet she

was also paid at a higher grade. Complainant claims that she had been

denied a promotion for many years and that she should be the equivalent

of a GS-12, not the GS-6 that she was at the time of the discrimination.

Complainant also claims that shortly after she made contact with an EEO

counselor, her new supervisor instructed her not to review investigative

results, one of her key responsibilities.

On May 10, 2005, complainant filed an EEO complaint alleging that she

was discriminated against on the bases of her race (Caucasian) and in

retaliation for engaging in protected EEO activity when:

1. her non-competitive promotion was delayed even while she performed

higher level duties;

2. a key responsibility was taken away from her;

3. the management representative at mediation breached confidentiality

by sharing information with her second level supervisor (S2); and,

4. S2 failed to recommend her for an award point for her annual

performance rating.

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 EEOC Administrative Judge (AJ). In accordance

with complainant's request, the agency issued a final decision pursuant

to 29 C.F.R. � 1614.110(b) concluding that complainant failed to prove

that she was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant contends that the agency's decision finding no discrimination

was incorrect. She claims that the agency instituted a civilian personnel

system (DEMOS) which allowed management more latitude to hire and promote

employees but management failed to promote her. Complainant contends

that neither S nor S2 had experience in personnel security issues,

and that she had to train them both in the duties of the office.

Complainant argues that S2 also hired or acquired eight other employees

who were at higher grade levels than she was, yet S2 took no action to

upgrade her position.

The agency responded to the appeal stating that complainant raised no new

evidence that would warrant overturning its decision. The agency argued

that complainant's appeal presented the same evidence already considered

and which was found to be unpersuasive. Therefore, the agency contends

the Commission should affirm its decision.

ANALYSIS AND FINDINGS

First we set forth the Commission's standard for review of the agency's

decision on appeal. 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 EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999).

This means that the Commission will examine the record without regard

to the factual and legal determinations of the previous decision maker

and it will issue a decision based on the Commission's own assessment

of the record and its interpretation of the law. Id.

In this case, complainant asserts that she was treated less favorably

because of her membership in a protected class -namely because she is

Caucasian and because she engaged in protected EEO activity. In order

to prevail in her disparate treatment claim, complainant must establish

a prima facie case by demonstrating that he was subjected to an adverse

employment action under circumstances that would support an inference of

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);

Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978)..

The prima facie inquiry may be dispensed with in this case, however,

since the agency has articulated legitimate and nondiscriminatory reasons

for its conduct. See United States Postal Service Board of Governors

v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans

Affairs, EEOC Request No. 05950842 (November 13, 1997). Specifically,

with regard to complainant's claim that the agency failed to promote

her, S2 stated that she was not ready to promote complainant so soon

after the Inspector General (IG) had found deficiencies in that division.

S2 stated she was assigned to the personnel security division in July 2003

and brought in S and B1 to come up with an industrial security program,

not just to do the lower level duties that complainant performed.

S2 acknowledged that these two employees may have done some of the

lower level tasks that complainant routinely performed, but they were

also required to develop procedures for addressing the deficiencies

identified by the IG's office and to brief higher level managers.

S2 stated that, after some time had elapsed and she had reviewed

complainant's performance, she took specific action to non-competitively

promote complainant based on an accretion of duties. She further stated

that she had to persuade her supervisor to exempt complainant's position

from the Most Efficient Organization study or her position would have

been filled by a contract employee. The timing of the promotion was not

entirely within her control since she had to get approval by higher level

managers as well as meet the requirements of the human resources office.

Additionally, S2 stated that she did not deliberately time the approval

of the promotion so that complainant would not receive an award point.

Rather, it was more important to get the promotion processed quickly.

S2 stated that since complainant would receive a 6% pay raise, the

award points would be reserved for other employees who did not receive

a promotion.

In order for complainant to prevail on her disparate treatment claim,

complainant must now prove, by a preponderance of the evidence, that the

agency's explanation is a pretext for discrimination. Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's

Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley

v. Department of Veterans Affairs, EEOC Request No. 05950842 (November

13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351

(December 14, 1995). The Commission finds that complainant failed to

meet her burden of demonstrating pretext. More specifically, complainant

did not rebut the agency's contention that S and B1 performed higher

level functions than complainant. Complainant also did not rebut the

assertion that S2 was newly assigned to manage the office and waited to

prepare a promotion package until she had time to evaluate complainant's

performance. Thus, complainant failed to demonstrate that the agency's

approval of her one grade level promotion, and not the several grade

levels that she desired, was motivated by her race.

Turning to complainant's claim of retaliation, she has established

that S2 and the Director of Corporate Operations (S3) were aware of

her protected EEO activity however, she failed to demonstrate that the

timing of the promotion was motivated by retaliation. See Hochstadt

v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324

(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department

of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997).

That is, complainant failed to rebut the evidence that S3 attempted to

change complainant's job series to a more favorable classification as

part of a settlement offer. This apparently resulted in a temporary

delay of her promotion while her case was being mediated, but was not

motivated by retaliation. Complainant also failed to refute the Security

Manager's (S4) explanation that she permanently reassigned some duties

related to industrial security to ensure complainant had ample time to

perform her core duties. S4 stated that these specific duties were not

complainant's main responsibilities, but were her alternate duties in

the absence of another employee.

Regarding complainant's claim that the timing of her promotion was

deliberate in order to avoid awarding her bonus points, complainant failed

to refute S2's contention that she was more concerned with getting the

promotion package processed in a timely fashion. Moreover, complainant

failed to demonstrate that S2 was being untruthful in asserting that

award points would be given to those employees who were not promoted as

complainant was. In sum, we find that complainant, having failed to rebut

the agency's reasons for its actions, did not prove by a preponderance

of the evidence that the agency was motivated by retaliation. 1

CONCLUSION

Based on a thorough review of the record and the parties' contentions

on appeal, including those not specifically addressed herein, we affirm

the agency's decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

____5/31/07______________

Date

1 Complainant includes as part of her complaint of discrimination an

assertion that the agency breached the confidentiality of the mediation

process by discussing her complaint with S2 and her co-worker B1.

A review of the record reveals that complainant does not claim the

agency's alleged action was motivated by discriminatory animus but rather

that the agency violated the rules of mediation. See Equal Employment

Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),

ch.3, Section VII. (November 9, 1999). While the Commission maintains

that mediation is a confidential matter, we need not address this issue

further as a claim of discrimination.

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0120071197

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120071197