0120082186
10-07-2008
Mary V. Wilson, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Mary V. Wilson,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120082186
Agency No. CRSD-2007-00255
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 10, 2008 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.
During the period at issue, complainant was employed as a Human Resources
Specialist, GS-201-13, at the agency's Departmental Human Resources
Division (DHRD), Office of Human Capital Management (OHCM), Departmental
Administration (DA) in Washington D.C.
On February 26, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against her
on the bases of race (African-American), age (51), and in reprisal for
prior EEO activity when:
1. on October 1, 2006, she was reassigned to the Senior Executive Service
(SES) Program but was not given any assistance or a promotion;
2. in November 2006, management did not reclassify her position
description so that she would have promotion potential to a GS-201-14;
3. in November 2006, she was not given the opportunity to be
noncompetitively reassigned to the Branch Chief position in the Employee
and Labor Relations Branch (ELRB)1; and
4. from November 1, 2006 through February 2007, management delayed
removing her from the agency's rolls which prevented her from performing
all of her functions in her new job at the Department of Justice
(DOJ).2
At the conclusion of the investigation, complainant was provided
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ) or accept a
final agency decision. Complainant requested a final agency decision.
In accordance with complainant's request, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b). In its final decision,
the agency found no discrimination occurred.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
McDonnell Douglas, 411 U.S. at 802; 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. See 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.
See 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 the personnel
action at issue, 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. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Regarding claim 1, complainant's second-level supervisor (S2) stated
that in January 2006, she was selected for the position of Director,
Executive Resources Staff, and that in March 2006, complainant came to see
her about a position in her office. S2 stated, "I thought very highly
of her work, and I thought she and I had a good working relationship.
I told her that I had no positions available at this time, but I would
gladly consider her if a position became available." S2 stated that in
September 2006, the Human Resources Specialist who provided service to
the agency's clients assigned to the Office of the Secretary Agriculture
(OSEC) applied and was selected for a position outside of the division.
S2 stated that she asked complainant if she would be interested in being
reassigned at the Human Resources Specialist servicing the clients.
S2 stated that she knew complainant performed these duties when she
worked for the Department of Commerce but complainant responded that
she was not sure.
Further, S2 stated that during the relevant time, her division was
"in the process of realigning the Executive Resources Staff and the
Human Resources Services Division, which was to become one Division
under me effective October 1, 2006." S2 stated that as a result of
the realignment, complainant was moved into the OSEC Support Office,
reporting directly to her. S2 stated that complainant never expressed
to her any concerns about the reassignment nor was there any discussion
about a possible promotion. S2 stated "while the program does service
senior level employees, it also services general schedule employees.
This position is a Human Resources Specialist, GS-201-13 and is properly
graded at that level."
Regarding complainant's allegation that she requested an upgrade but
S2 did not do anything, S2 stated that "contrary to her assertions,
[Complainant] never requested a promotion nor did she request a desk
audit of her position." S2 stated that the former Human Resources
Specialist who worked in the subject position prior to complainant
"was classified as a GS-201-13 Human Resources Specialist." S2 stated
that even if the former Human Resources Specialist had requested a desk
audit and the audit determined there were duties at the GS-14 level,
she "could have decided to remove the GS-14 duties from the position.
Therefore, a promotion to GS-14 was not guaranteed."
Regarding claim 2, S2 denied complainant's allegations that management did
not reclassify her position description so that she would have promotional
potential to a GS-14, and that management proactively reclassified an
identified employee (E1)'s position to a GS-13/14 position so she could
be promoted to the GS-14 position non-competitively. Specifically,
S2 stated that E1 was a Presidential Management Fellow, and that in
accordance with the Presidential Management Fellow guide, E1 "could
be promoted noncompetitively up to the GS-13 level and/or placed in
a position with a career ladder beyond GS-13." S2 stated that E1 was
in the excepted service and "may be promoted without consideration to
time-in-grade requirements." S2 stated that during the relevant time, E1
served as Departmental Administration's Labor Relations Officer and was
solely responsible for a large program then in its infancy. S2 stated,
"I strongly believed that there was labor relations program work at
the GS-14 grade level when I tasked [the Human Resources Specialist]
to prepare a position description for GS-14 Labor Relations Specialist."
S2 stated that in regard to the Labor/Employee Relations and Litigation
Branch Chief position, she made a decision to advertise the Branch
Chief position at both GS-13 and GS-14 levels "so I could attract more
candidates when the vacancy was posted." S2 stated that because E1 was
a Presidential Management Fellow and in the excepted service, complainant
was not similarly situated to E1.
Regarding complainant's allegation that E1 was promoted from GS-11 to
GS-13/14 within three months, S2 stated that "this is not correct.
However, even if it was correct [E1] was a Presidential Management
Fellow and in the excepted service. As such she was not subject to
time-in-grade requirements." S2 stated that E1's promotions to GS-12/13
"were approved prior to my becoming the Director of this Division on
July 24, 2006. Therefore, I can only respond by stating that she was
in fact promoted to GS-12 on March 5, 2006, and to GS-13 in June 2006."
S2 stated that she selected E1 for the position of Labor/Employee and
Litigation Branch Chief, and "she was reassigned to that position on
December 24, 2006, but not promoted."
The Human Resources Specialist (HR Specialist) stated that in early
October 2006, he reviewed and classified a position for a Human Resources
Specialist (Labor/Employee Relations), GS-13/14, that converted E1 "to a
Career Appointment position. The request came to me signed off by [S2]
and [Director, Office of Human Capital Management (D1)]. Subsequently,
I reviewed a position for the Branch Chief of Employee/Labor Relations
and Litigation Branch (2nd request) that was vacant at the time." The HR
Specialist stated that the request was also submitted by S2 and signed
off by D1. The HR Specialist stated that the position "was a GS-14 at
that time. I was asked to reclassify it a GS-13/14. It was feasible to
make it a GS-13/14 because there were a lot of developmental employees
over in that branch, there were GS-13s too." The HR Specialist stated
that S2 and D1 asked that this be a developmental supervisory position at
the GS-13 level. Moreover, the HR Specialist stated, "I was not asked
to review and reclassify [E1's] position. I was asked to reclassify
the vacant Branch Chief position."
Regarding claim 3, S2 stated that there were only two employees, including
E1, in the Labor/Employee Relations and Litigation Branch, at the time the
Branch Chief position became vacant. S2 stated that the other employee
"did not indicate a desire to serve as branch chief so [E1] was designated
as acting branch chief from August 30, 2006, to December 24, 2006."
S2 stated that complainant "never indicated any desire to serve as the
acting Employee/Labor Relations Chief, so the opportunity was never
extended to her." S2 stated that complainant had previously contacted
her to express interest in working in the Executive Resources Staff
"but she had never asked to be placed in the Labor/Employee Relations
Branch." S2 stated, "I also noncompetitively reassigned Complainant
- to the position she had expressed interest and had experience in -
when the opportunity arose." S2 stated that three identified employees
were noncompetitively reassigned to the Branch Chief positions in the
Departmental Human Resources Division "as part of the reorganization."
S2 stated that in November 2006, she competitively announced the branch
chief position and had approximately ten individuals apply for the
subject position. S2 stated that complainant did not apply for the
subject position.
D1 stated that during the relevant time, complainant "never asked to
be noncompetitively reassigned to act in either branch chief position.
Had complainant wanted the opportunity to act in either position at the
GS-13 level, she would have been afforded that opportunity."
Regarding claim 4, S2 stated that when an employee transfers to another
government agency, "the gaining agency usually calls us for the Standard
Form 75 information; this is the basic employment information in their
Official Personnel Folder (OPF), as well as payroll data." S2 stated that
a personnel action is processed terminating the employee's employment
on the date of the departure. S2 stated that the Chief, Staffing and
Placement Branch (Chief), "informed me that she had forwarded a memo to
NFC explaining that [complainant] had left the agency and had canceled
all access to NFC for [complainant] at US Department of Justice."3
The Chief stated that complainant's new manager at DOJ "only called
me once for an initial reference. I contacted her back but she never
called me back." The Chief stated that several employees on her staff
could have forwarded the information to DOJ and she assumed someone did
since complainant's leave and other information was forwarded to DOJ.
The Assistant Secretary (AS) stated that complainant called her and
informed her that her release from the agency had not been completed
and "this was hindering her new job performance since she could not
perform all of her duties." AS further stated that complainant informed
her that the codes were missing from a personnel document indicating
that her former division had not inputted the necessary information.
AS stated that she then contacted D1 regarding complainant's concerns.
AS stated that D1 "returned to me in the afternoon and she told me [S1]
investigated what had happened. She said there was some attempt to enter
the code, but it did not take and then there was no follow up. I followed
up on this a couple days later and was told that they had coordinated
with NFC to resolve this and I was told that it was resolved."
In view of the foregoing, the commission finds that the agency has met
its burden to provide legitimate, non-discriminatory explanations for
its actions. The Commission further finds that complainant has not
adduced evidence to establish that the agency's proffered explanations
were merely pretext for discrimination.
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
October 7, 2008
Date
1 The record reflects that ELRB later became known as the Labor/Employee
Relations and Litigation Branch.
2 The record reflects that since November 10, 2006, complainant has been
employed at the DOJ as Lead Human Resources Specialist, GS-201-14.
3 NFC is an acronym for National Finance Center.
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0120082186
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082186