01a52337
07-07-2005
Angela Manning, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Angela Manning v. Department of Veterans Affairs
01A52337
July 7, 2005
.
Angela Manning,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52337
Agency No. 2001-0317-2003104134
Hearing No. 150-2004-0356X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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 accepted for the
Commission's de novo review pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that complainant was hired by the agency as a
Veterans Service Representative, GS-996-7, on June 5, 2001, as a
probationary employee. On April 12, 2002, she was removed during her
probationary period. In a letter to complainant, the Director stated
that her removal was based upon her inability to work well with others
in a team environment. He stated that she was too involved in office
politics which did not foster cooperation or contribute to a positive
work environment.
By letter dated July 9, 2002, complainant's Congressman wrote to the
Director requesting that her situation be reviewed and that she be rehired
especially since she was nearing the completion of a master's degree.
The agency responded stating that complainant's academic skills were not
transferable to the extremely technical and detail-oriented work of the
Veterans Service Representative. The agency stated that she struggled
throughout her probationary training period and failed to demonstrate any
potential for development of the required skill-set for the position. The
agency noted that a contributing factor to her difficulties may have
been her over-involvement in office politics. The agency stated that
they were unable to extend an offer of re-employment due to the nature
of her removal.
Complainant sought EEO counseling and subsequently filed a formal
complaint on September 15, 2003, alleging that she was discriminated
against on the bases of race (Caucasian), color (White), sex (female),
and in reprisal for prior EEO activity when the agency refused to rehire
her. The record reveals that during the investigation the complainant
refused to cooperate with the investigator and did not complete an
affidavit. At the conclusion of the investigation, complainant was
informed of her right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
Complainant requested a hearing but later withdrew from the hearing
process and requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of race, color or sex discrimination. Specifically,
the agency found that complainant was unable to show that members of
other protected groups were treated more favorably, that there were job
openings and that she applied for a position. The agency found that
complainant failed to establish a prima facie case of reprisal because
she had not previously engaged in EEO activity.
The agency stated that management articulated legitimate,
nondiscriminatory reasons for not re-hiring complainant. Specifically,
the agency contended that there was a hiring freeze at the time
complainant's congressman requested that she be rehired and no positions
were available. Further, because of the circumstances of her removal,
the agency stated that it would not consider complainant for re-hire.
The agency found that complainant failed to present evidence that
the agency's articulated reasons for its actions were a pretext for
discrimination. On appeal, complainant makes no contentions. The agency
requests that we affirm its FAD.
In order to establish a prima facie case of race, color or sex
discrimination, complainant must show that she is a member of a protected
group and that she was subjected to an adverse employment action. Packard
v. Department of Health & Human Services, EEOC Appeal Nos. 01985494,
01985495 (Mar. 22, 2001). She must also show either that she was
treated less favorably than other similarly situated employees outside
of his protected group, id., or must present other, non-comparative
evidence which supports an inference that the agency was motivated by
unlawful discrimination. See O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor
v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4
(September 18, 1996).
Here, complainant has shown that she was not extended an offer of
re-employment which is an adverse employment action. However, she has
failed to show that she was treated less favorably than those outside
of her protected groups. Complainant has not disputed the agency's
contention that no one was hired or rehired for any positions because
of a hiring freeze. Complainant did not present any evidence that
would support an inference that the agency was motivated by unlawful
discrimination. Accordingly, we find that complainant has failed to
establish a prima facie case of race, color or sex discrimination.
With respect to her contention of reprisal, complainant can establish
a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6,
1996) (citing McDonnell Douglas Corp. v. Green, we assume arguendo
that the record of discussion constituted adverse treatment, and do
the analysis based on complainant's failure to establish nexus: �The
nexus may be shown by evidence that the adverse treatment followed the
protected activity within such a period of time and in such a manner
that a reprisal motive is inferred. See Devereux v. United States Postal
Service, EEOC Request No. 05960869 (April 24, 1997).� 411 U.S. 792, 802
(1973)). Specifically, in a reprisal claim, and in accordance with the
burdens set forth in McDonnell Douglas, 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), a complainant may establish
a prima facie case of reprisal by showing that: (1) he or she engaged in
a protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
Complainant's only explanation regarding her claim of reprisal is stated
in her complaint. She asserted that she opposed discriminatory action
against another employee by management. Even if true, complainant has
failed to show that the agency was aware of her protected activity in
that she has not even contended that agency management was aware of her
protected activity. Accordingly, we find that complainant has failed
to establish a prima facie case of reprisal.
In conclusion, we find that the agency did not discriminate against
complainant on the bases of her race, color or sex or in reprisal for
previous EEO activities. Therefore, after a careful review of the record
and arguments and evidence not specifically addressed in this decision,
we affirm the FAD.
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:
July 7, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations