0120110347
07-19-2012
Ferial K. Ardalan, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Ferial K. Ardalan,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110347
Agency No. ARPOM09OCT05023
DECISION
On October 13, 2010, Complainant filed an appeal from the Agency's September 15, 2010, 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. The Commission accepts the appeal 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 is whether the Agency properly determined that Complainant did not establish that she was discriminated against as alleged.
BACKGROUND
Complainant is a former employee of the Agency's Defense Language Institute Foreign Language Center (DLIFLC) in Monterey, California. She previously worked for the Agency from 1989 through 1995, and was terminated from her position as Training Instructor, Persian Farsi Department, on October 20, 1995.
On November 23, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity arising under Title VII and the ADEA when she was not selected on a continuing basis for employment, beginning in the year 2004, for the positions of:
1. Instructor, Persian-Farsi, AD-1701-0, announcement #WTEY09FPSFARS-02D;
2. Senior Instructor, Persian-Farsi, AD-1701-0, announcement #WTEY09FPSFARS-03D; and
3. Associate Professor, Faculty Development, AD-1701-0, announcement #WTEY09FPSD-04D
The Agency accepted the claim regarding the above-listed three positions for investigation. 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 for a final decision, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency first addressed Complainant's contention that her claim consisted of a continuing violation for non-selection to positions for which she had applied dating to 2004. It noted that she had filed formal complaints for non-selections on November 30, 2004, April 19, 2005, July 7, 2006, March 12, 2007, and September 11, 2007. With respect to the positions already addressed in those previously filed complaints, the Agency found that the claims of non-selection for those positions were properly dismissed under 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, as they stated the same claims which had already been addressed in previous EEO complaints. With respect to her claim that all of her non-selections dating to 2004 were inter-related incidents of discrimination which formed a continuing violation, the Agency found that non-selections are discrete acts and cannot constitute a continuing violation. Therefore, it confined it analysis of Complainant's case to the timely raised claims of non-selection in the form of the three positions delineated in the acceptance letter.
The Agency assumed that Complainant had established a prima facie case of reprisal discrimination. It found that it had articulated legitimate, nondiscriminatory reasons for Complainant's non-selections. The Agency stated that Complainant was not eligible for selection due to DLIFLC Regulation 690-1, which specifies that employees removed for cause cannot be re-employed by the Agency. As Complainant was removed for cause in 1995, and that removal was upheld1, it found that she was ineligible for any positions at DLIFLC to which she had applied. It noted that DLIFLC Regulation 690-1 was implemented in accordance with 5 C.F.R. � 302-203. The selecting official testified that he was aware that Complainant had been terminated for cause, and disqualified her from consideration on that basis. The Agency concluded that Complainant had not shown its reasons for her non-selections to be pretext for discrimination and that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
In her statement in support of her appeal, Complainant contended that numerous Agency employees had engaged in "unlawful activities" in order to deny her employment with the Agency. She claimed that the Agency engaged in retaliation when it refused to hire her in any part of the Agency, noted on her employment file that she was not eligible for rehire, and informed prospective employers that she was terminated for cause. She maintained that her removal was improper, and that the findings in previous cases that she had not established that she had been discriminated against were incorrect. She also accused the Agency of engaging in "defamation of character." Complainant argued that the no-rehire policy with respect to former employees who had been removed for cause was not adopted in accordance with various regulatory requirements, and that it had been implemented in a scheme to perpetuate discrimination against her. Complainant requested that the Commission reverse the Agency's decision, order an investigation into the no-rehire policy, and place Complainant into a teaching position at the Agency, with all appropriate remedies.
The Agency submitted a statement in opposition to Complainant's appeal in which it argued that it had properly analyzed Complainant's complaint. It argued that Complainant failed to offer any proof that the Agency's actions were based on unlawful discrimination, and were instead only her "unsupported speculation." It also claimed that DLIFLC Regulation 690-1 was validly adopted, and had been subject to challenge in the grievance process by the union; it noted that the matter had been arbitrated and subject to appeal at the Federal Labor Relations Authority (FLRA), which affirmed the arbitration decision upholding the validity of DLIFLC Regulation 690-1. It urged the Commission to affirm its final decision.
STANDARD OF REVIEW
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 Chap. 9, � VI.A. (Nov. 9, 1999) (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").
ANALYSIS AND FINDINGS
Procedural issues
The Agency dismissed any of Complainant's claims of non-selection which occurred more than 45 days prior to her EEO Counselor contact in this case, as well as those raised in previous EEO complaints. We find that those dismissals were proper.
The Supreme Court has held that discrete acts such as hiring, firing, and promotions that fall outside of the limitations period are not actionable and no recovery is available. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Even if the discrete activity is arguably related to other discriminatory acts that occur within the filing period, they are not actionable if untimely raised. Id. See also, EEOC Compliance Manual 915.003, Section 2: Threshold Issues, (rev. July 21, 2005). However, as the Court recognized, an employee may use the prior acts as background evidence in support of a timely claim. Morgan at 113.
Therefore, we affirm the Agency's decision to confine its accepted issues to the three non-selections which were timely raised. We will consider Complainant's previous non-selections as background evidence to her timely claims of discriminatory non-selection.
Disparate treatment
To prevail in a disparate treatment claim, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804, n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
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., supra). 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. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. See Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
We find that Complainant established a prima facie case of reprisal discrimination in that she had engaged in protected EEO activity in the form of EEO complaints dating back to the early 1990s. Many Agency officials were aware of her protected activity, including the selecting official for the vacancy announcements at issue in this complaint, the Human Resources officials, and various other Agency employees. Complainant suffered an adverse action through her various non-selections, and we can imply a causal effect due to the nature and continual filing of her EEO complaints.
The Agency articulated legitimate, nondiscriminatory reasons for its actions. It pointed to its regulation which forbids the re-employment of any former employee who had previously been removed for cause. The record shows that Complainant was removed for cause in 1995, and that removal was upheld by various reviewing authorities, including the MSPB, the Commission, and the federal courts.
We conclude that Complainant has not shown the Agency's reasons for her non-selections to be pretext for discrimination. She cannot point with any specificity to any other former employee who was removed for cause and was subsequently rehired. Although she has vigorously disputed the validity of DLIFLC Regulation 690-1, we find that it is outside of the jurisdiction of the Commission to review the implementation process for this regulation, and that in any case, she has presented no evidence which establishes that it was implemented in order to perpetuate unlawful discrimination.
We also note that Complainant has raised her claims of defamation and conspiracy on the part of the Agency employees in a civil action, and has not prevailed in that claim. The U.S. District Court for the Northern District of California dismissed her action with prejudice, found that her claims should have been raised in her previous civil action, and found that Complainant had failed to demonstrate that the Agency had fraudulently concealed evidence from her. The decision of the Ninth Circuit Court of Appeals affirmed the District Court's decision, and noted that the lower court had "considered the merits of that action, including her allegations of obstruction of justice by the [Agency]." See Ardalan v. White, 58 Fed.Appx. 350, 2003 WL 1194059 (C.A.9 (Cal.)).
CONCLUSION
Therefore, based on a thorough review of the record and of the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's determination that Complainant was not discriminated against as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
July 19, 2012
Date
1 Complainant challenged her termination before the Merit Systems Protection Board (MSPB). The MSPB's decision sustaining Complainant's removal and finding that she had not been subject to discrimination based on sex and in reprisal for her prior EEO activity was upheld by the Commission in Ardalan v. Department of the Army, EEOC Petition No. 03990007 (April 21, 1999). Complainant did not prevail in the civil action filed in relation to her termination. See Ardalan v. Caldera, 24 Fed.Appx. 827, 2001 WL 1664359 (C.A.9 (Cal.)) (affirming District Court's grant of summary judgment on Complainant's claims in favor of Agency).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120110347
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110347