01a51339
05-13-2005
James R. Oprzedek, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy, Agency.
James R. Oprzedek v. Department of Engery
01A51359
05-13-05
.
James R. Oprzedek,
Complainant,
v.
Samuel W. Bodman,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A51339
Agency No. 030057CH
Hearing No. 210-2004-00221X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final order.
The record reveals that complainant, a Environmental Engineer, GS-819-13,
in the agency's Operations Office, Safety and Technical Services,
Office of Technical and Administrative Group in Chicago, Illinois,
filed a formal EEO complaint on February 13, 2003. In this complaint,
complainant alleged that the agency retaliated against him for prior EEO
activity when he did not receive a monetary award from his supervisor
(S1) based on his Performance Evaluation for the period of December 1,
2001, to November 30, 2002.<1>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). When complainant failed to comply with the AJ's request
for pretrial submissions, the AJ dismissed the case with prejudice.
The AJ noted that based on the record before him, complainant failed
to establish that the agency's proffered legitimate, nondiscriminating
reason was a pretext for discrimination. The AJ remanded the case to
the agency and ordered the agency to issue a final decision.
The agency issued a final decision finding no discrimination. In its
FAD, the agency found that the agency articulated a legitimate,
nondiscriminating reason for not providing complainant with a
monetary award. S1 stated it was within his discretion to decide not
to provide complainant with a monetary award since his performance only
met expectations. The agency found that complainant failed to present
sufficient evidence to establish that the proffered reason was a pretext
for retaliation. Specifically, the agency found that complainant's only
evidence of pretext was that he believed that he should have received
an award because he was performing the work of two people and continues
to do exceptional work based on the lack of any complaints about his
work performance. Ultimately, the agency found that complainant had not
established that he had been retaliated against. Complainant makes no
new contentions on appeal, and the agency requests that we affirm its
final order.
As a preliminary matter, we note that on appeal, we review the FAD
issued without a hearing de novo. 29 C.F.R. � 1614.405(a). To prevail
in a disparate treatment claim such as this, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Generally, he
must establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with
in this case, however, since the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). We find that the agency articulated legitimate,
nondiscriminatory reasons for its action; namely, S1 stated that the
performance awards were distributed at the supervisors discretion for
those employees who, like complainant, met expectations. S1 provided that
there were two employees besides complainant who did not receive monetary
awards who also met the expectations of their position. S1 stated that
he was unable to provide these employees with monetary awards due to a
shortage of funds.
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120
S.Ct. 2097 (2000); Holley v. Department of Veterans Affairs, EEOC
Request No. 05950842 (November 13, 1997). The only evidence of pretext
offered by complainant is that he believed he should have received
the award and that S1, the agency official complainant previously
accused of discriminating against him, repeatedly said that he would
not get mad at complainant, but �get even.� S1 admits to making the
comment but stated that he stated it in jest and that this occurred
many years before he decided not to give complainant a monetary award.
Complainant has not offered any evidence to rebut this. Therefore, we
find that complainant failed to establish, by a preponderance of the
evidence, that the agency's legitimate, nondiscriminatory reason was
a pretext for discrimination. In so finding, we note that complainant
has offered no probative evidence to corroborate his contentions that
the agency was motivated by retaliatory animus.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__05-13-05________________
Date
1 It is unclear from the record which statute complainant is alleging
the agency violated in this case.