EEOC Appeal 2020001134

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Larissa E.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 2020001134
Agency No. 19-60191-00720
DECISION
On November 20, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s October 18, 2019 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Stable Manager, NF-1101-04 at the Agency’s
NAS Oceana Stables, Commander Navy Region Mid-Atlantic facility in Virginia Beach,
Virginia.2
On March 7, 2019, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her based on sex (female) when:
a. 	since February 2018, Complainant has been paid less wages and her opportunities for
career advancements were stalled by the inactions of the Morale, Welfare, and
Recreation (MWR) Director and MWR Deputy Director, when her repeated requests
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 The record reflects that Complainant resigned from Agency employment effective May 23, 2019.

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for reclassification of her Stable Manager position description (PD) from a NF-03 to
NF-04 pay grade were ignored and delayed;
b. 	in May 2018, the MWR Deputy Director laughed at Complainant and made an
inappropriate comment when she informed him that she applied for a higher graded
position; and
c. 	in December 2018, after Complainant’s Stable Manager’s NF-03 PD was reclassified
to a NF-04 pay grade, Complainant was not provided with back pay commensurate
with the duties she performed at the NF-04 level work from January 2018 to December
2018.
After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative Judge.
In accordance with Complainant’s request, the Agency issued a final decision on October 18, 2019,
pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed. Complainant did not submit a brief on appeal.
ANALYSIS AND FINDINGS
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 complainant to prevail, she
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).

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Regarding claim a, Complainant asserted that since February 2018, Complainant has been paid
less wages and her opportunities for career advancements were stalled by the inactions of the
MWR Director and MWR Deputy Director when her repeated requests for reclassification of her
Stable Manager PD from a NF-03 to NF-04 pay grade were ignored and delayed.
The MWR Deputy Director (male) stated that in March 2018, he became her supervisor. He noted
that he became aware Complainant had a concern with her classification in late May 2018 and in
a meeting they had in late June 2018, Complainant “expressed to me she would like to rewrite her
PD.” The supervisor stated that he then gave Complainant a copy of her existing PD “to make
edits. She took it and it was a very amicable situation.” He noted that in July 2018, Complainant
brought back the edited PD in which he made several edits and “gave it to her for a final review
and she gave it back to me in the latter part of July [2018]. When I received it back, I read it over
again and forwarded it to [MWR Director] who handled it from that point on. That was the end
of my involvement.”
The MWR Director (male) noted that Complainant’s PD was ready on July 25, 2018, after she
worked with the supervisor editing it. He stated that it was his responsibility to send it to Human
Resources (HR) but acknowledged that it was not the best time to submit such a matter to HR.
Specifically, the MWR Director determined that the department did not have the financial standing
at that point in the fiscal year to support the move. Therefore, he held it until the end of the fiscal
year. The MWR Director stated that on October 24, 2018, he submitted Complainant’s PD to the
Lead HR Specialist for review. He asserted at that time, he supported Complainant’s receiving an
increase in pay but the department was over budget and he needed to wait until the appropriate
time to submit for review. The MWR Director stated that it was not until December 4, 2018, when
the Lead HR Specialist notified him that Complainant’s position would be reclassified but she had
several administrative questions.
Further, 	the 	MWR 	Director 	stated 	that 	on 	December 	12, 	2018, 	the 	Captain 	approved
Complainant’s request for a raise and the next day, December 13, 2018, he sent everything to the
Lead HR Specialist that she requested. He stated that was the last communication he had with HR
until prior to Christmas when he learned that Complainant’s raise went into effect around
December 21, 2018.
The Lead HR Specialist (female) acknowledged receiving Complainant’s PD for reclassification
in October 2018. 	She acknowledged she had seven other positions ahead of Complainant’s to
reclassify, and when she finally got to review Complainant’s PD in December 2018. The Specialist
stated that Complainant’s position was upgraded to a NF-04.
Furthermore, the Specialist stated that there were steps that Complainant could have taken “if she
felt that the PD was inaccurate. 	Dissatisfaction with the accuracy of the PD should have been
discussed with her supervisor, and if necessary the grievance procedure. 	If she is saying her
managers ignored taking up the issue with her, she could have put in an administrative grievance
or a classification appeal with the HR department.

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When a grievance is taken to the HR Department, we would have gone to the manager and
reviewed the grievance and tried to resolve the grievance at the lowest level possible.”
Regarding claim b, Complainant alleged that in May 2018, the supervisor laughed at Complainant
and made an inappropriate comment when she informed him that she applied for a higher graded
position.
The supervisor denied laughing at Complainant or making inappropriate comments. Specifically,
the supervisor stated that he had a conversation with Complainant about applying for the Youth
Sports Coordinator position through a different department. He acknowledged being taken back
by her comment “because I was unclear why she would be telling me this. The only thing she may
could have construed as negative is that I told her that before she applies, that she knows the
process and she would need to get on the cert list for her to even be eligible for an interview.”
Further, the supervisor stated I was not sure if she had “the coaching and fitness certifications on
her resume that would have made her eligible. It was just a reminder and that was the end of the
conversation.”
Regarding claim c, Complainant alleged that in December 2018, after Complainant’s Stable
Manager’s NF-03 PD was reclassified to a NF-04 pay grade, Complainant was not provided with
back pay commensurate with the duties she performed at the NF-04 level work from January 2018
to December 2018.
The Specialist explained that Complainant did not have any recourse with respect to back pay for
duties she performed at the NF-04 grade level because the effective date of a change in pay rate is
the first day of the first day period or after the date the action is approved in writing by the
authorized approving official. 	She further stated that until the classification was completed,
Complainant was a NF-03, not a NF-04. 	The Specialist noted that in December 2018,
Complainant’s PD was classified “which is the date her pay increase could be approved.
Additionally, as I stated previously, [Complainant] could have accelerated the process by filing an
administrative grievance or a classification appeal if she felt her PD was inaccurate.”
In 	summary, 	as 	detailed 	above, 	the 	responsible 	Agency 	official 	articulated 	legitimate,
nondiscriminatory reasons for the disputed actions, which Complainant failed to prove, by a
preponderance of the evidence, were a pretext designed to mask sex discrimination.
CONCLUSION
We AFFIRM the Agency’s final decision finding no discrimination because the preponderance of
the evidence of record does not establish that discrimination occurred.

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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).
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.

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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
September 17, 2020
Date