Melina K.,1 Complainant,v.Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 25, 2017

0120150759 (E.E.O.C. Apr. 25, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Melina K.,1
Complainant,

v.

Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.

Appeal No. 0120150759

Agency No. 11-63093-00240

DECISION

On December 17, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s November 17, 2014, 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 Supervisory Education and Training Technician at the Center for
Naval Aviation and Technical Training (CNATT) in Pensacola, Florida. On December 22,
2010, she filed an EEO complaint in which she alleged that the Supervisory Management
Analyst who was her immediate supervisor (S1), the Executive Officer, her second-line
supervisor (S2), and the Commanding Officer, her third-line supervisor (S3)2 had
discriminated against her on the bases of sex (female), age (54) and in reprisal for prior EEO
activity in connection with six incidents.

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.

2 These individuals had left the Agency before the investigation could commence. Investigative
Report (IR) 435.
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The Agency dismissed the complaint for failure to state a claim, but in Complainant v.
Department of the Navy, EEOC Appeal No. 0120113333 (February 27, 2014), request for
reconsideration denied, EEOC Request No. 0520140281 (Oct. 27, 2014), the Commission
modified the Agency’s decision, affirming the dismissal of four incidents and remanding the
remaining two, which are identified as follows:

1. On September 25, 2010, when Complainant’s position was converted from the National
Security Pay System (NSPS) to the General Schedule (GS), she was given a position at
grade GS-06 rather than at grade GS-09 or above.

2. On December 14, 2010, her rating on the third performance objective of her appraisal
was lowered from “4” to “3” without explanation, which caused her not to receive a
salary increase for her performance during Fiscal Year 2010.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not
request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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.

Incident (1)

Complainant averred that she had filed several EEO complaints against S1, S2, and S3 raising
numerous bases and issues, including claims of reprisal, age and sex discrimination, and
hostile environment. IR 385-86, 390. She maintained that these three individuals were
responsible for the fact that she did not receive a grade higher than GS-06 following her
conversion from the NSPS on September 25, 2010. IR 386-90. According to the Executive
and Commanding Officers who had replaced S2 and S3, Complainant, S1 and several other
supervisors had been converted from the GS to the NSPS several years earlier and in
accordance with the National Defense Authorization Act for Fiscal Year 2010, they were to be
converted back to the GS. Both witnesses averred that the conversion process had to conform
to strict regulatory requirements, including the requirement that those who had converted from
the GS to the NSPS be returned to the GS positions they held prior to the first conversion. IR
171, 173, 268-76, 408-10, 415-16.

A Management Analyst involved with the implementation of the conversion process averred
that Complainant was returned to the same GS grade that she held before being converted to
NSPS because her duties and responsibilities had not changed while she was under the NSPS.
IR 422. A second Management Analyst involved with the process averred that Complainant,
S1, and all of the other supervisors who had been converted from the NSPS to the GS had all
transitioned back to the same GS grade level they held prior to their transition into the NSPS.
IR 432.
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Incident (2)

On December 14, 2010, Complainant became aware that she had received a performance
appraisal rating of “3” on the third objective of her performance plan for FY 2010, while she
was under the NSPS. S1 was the rating official and S2 was the reviewing official. IR 288,
293. The year before, she had received an appraisal rating of “4” on the third objective.
While her overall rating of record remained at “4” for FY 2009 and FY 2010, the change had
the effect of lowering her average rating score from 4.00 to 3.67, which she asserted would
adversely affect the size of any salary increases or bonuses she would receive under the pay-
for-performance system that she was under at the time. IR 297-99, 305-11, 344-45, 363-67,
370, 375. Complainant averred that S1 provided no discussion or explanation for the
purported downgrade, and that the supervisory narrative provided by S1 did not denote a
decline in her performance as it related to the third objective. IR 396. However, in the
supervisory narrative for the third objective, S1 reported that Complainant had exceeded the
objective during FY 2009 but had only met the objective during FY 2010. IR 310, 344.

Complainant averred that under the pay-for-performance assessment process, known as the
“pay pool,” her lower average score for FY 2010 resulted in her not receiving a salary
increase for that year, as she had for the year before. IR 393-95. The Executive Officer who
replaced S2 explained that the pay pool was comprised of supervisors from across the CNATT,
including Complainant. The purpose of the pay pool was to determine the salary increases and
bonuses that would be awarded to their employees. After the appraisals had been prepared and
supervisory input included, they were randomly distributed to pay pool members. This was
done so that supervisors would not be making determinations on their own people, which
would ensure that the pay pool members’ determinations would be objective. The Executive
Officer emphasized that Complainant’s assessments for FY 2009 and FY 2010 were the result
of that process. IR 410-11. According to pay disbursement records for FY 2009 and FY
2010, Complainant received a salary increase of $555 for her performance during FY 2009 and
a $1,333 bonus for her performance during FY 2010. IR 311, 344-45.

ANALYSIS AND FINDINGS

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”).

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The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on her disparate treatment claim, Complainant would
have to prove, by a preponderance of the evidence, that either S1, S2, or S3 was motivated by
unlawful considerations of her sex, age, or previous EEO activity in connection with the two
incidents described in her complaint. See Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000). She may do so by satisfying the three-part test fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 & n.13 (1973).

Under this test, Complainant must first establish a prima facie case by demonstrating she
belongs to a statutorily protected group and was subjected to an adverse employment action by
S1, S2, or S3 under circumstances that would support an inference of discrimination. Furnco
Construction Co. v. Waters, 438 U.S. 567, 576 (1978). In this case, Complainant is protected
under Title VII and the ADEA, not only from direct acts of discrimination but also from acts
of retaliation for engaging in protected EEO-related activity. As to the conversion from the
NSPS to the GS system, she was placed in a GS-06 supervisory position while several younger
male supervisors, including S1, were placed in higher-graded supervisory positions upon their
return to the GS scale. However, there are no indications in the evidentiary record that S1,
S2, or S3 were directly involved in the decisions regarding the GS pay grades into which
employees converted from the NSPS would be placed. Regarding Complainant’s FY 2010
performance appraisal, S1, a younger male, had given Complainant a rating of “3” on the third
objective and S2 had concurred. Yet, it appears that Complainant had received a larger
increase in FY 2010 than in FY 2009, although it took the form of a bonus rather than a salary
increase. Consequently, it is not clear from the record whether the performance element rating
of “3” actually was an adverse employment action. Nevertheless, for purposes of analysis, we
will assume that Complainant has established a prima facie case of discrimination on all three
bases with respect to both incidents.

The burden then shifts to the Agency to articulate legitimate and nondiscriminatory reason for
the actions taken by S1 and S2. Burdine, supra at 253. S3 does not appear to have had any
involvement with either action. With regard to the conversion, the Commanding Officer, the
Executive Officer, and two Management Analysts stated that Complainant’s conversion from
the NSPS to the GS system was carried out in accordance with a congressional mandate, that it
was done in a manner consistent with the Agency’s regulations, and that Complainant had been
returned to the same GS grade she had previously held because her duties had not changed
while she was under the NSPS. Concerning the appraisal rating, the supervisory narratives
for the third objective indicate that S1 did determine that Complainant’s performance had
declined in that element, notwithstanding Complainant’s assertions that S1 gave no explanation
for his action. The Executive Officer who had replaced S2 explained that Complainant’s pay
pool distribution was determined in an entirely objective fashion through a process which did
not permit supervisors to determine pay outs for their own employees. We find these reasons
to be legitimate and nondiscriminatory.

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Complainant must now establish motive on the part of S1 and to a lesser extent on the part of
S2. She can do so by presenting evidence tending to show that the reasons articulated by the
Commanding Officer, the Executive Officer, and the two Management Analysts are pretext,
i.e., not the real reasons but rather a cover for discrimination or reprisal. St. Mary’s Honor
Center v. Hicks, 509 U.S. 502, 515 (1993). Pretext can be demonstrated by showing such
weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for
its actions that a reasonable fact finder could rationally find them unworthy of credence.
Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request
for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). When asked by
the Investigator why she believed that her sex, age, and previous EEO complaints were the
reasons why she was denied a promotion upon her return to the GS and given a lower
performance appraisal, she replied that S1, S2, and S3 all knew her personally and were all
named in her prior complaints. IR 389-91. She further averred that they wanted to create
what she referred to as an “all male yacht club” and that because she was an older female she
did not “fit in.” IR 394, 397. Beyond these conclusory assertions, Complainant has presented
neither any affidavits, declarations, or sworn statements from witnesses other than herself, nor
documents which contradict the explanations provided by the Commanding Officer, the
Executive Officer, or the two Management Analysts regarding the actions of S1 and S2 in
connection with the two incidents. She has likewise not pointed out any inconsistencies or
contradictions in the evidentiary record which would cause one to question the veracity of these
witnesses. We therefore agree with the Agency that Complainant has failed to meet her burden
of proof with regard to the disparate treatment claim at issue in this appeal.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant was not discriminated against.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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.
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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), 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. The requests 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 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 (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
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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

April 25, 2017
Date