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