0120072521
08-16-2007
Willand C. Losinger, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Willand C. Losinger,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120072521
Agency No. APHIS200501289
DECISION
On April 28, 2007, complainant filed an appeal from the agency's April 16,
2007, final decision (FAD)1 concerning his 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. The appeal is deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).
Complainant contacted an EEO counselor on August 24, 2005, and, on October
12, 2005, he filed an EEO complaint claiming discrimination based on
reprisal for prior protected EEO activity when, on July 5, 2005, he was
not selected for the position of Mathematical Statistician, GS-1529A-12/13
(position), at the National Animal Health Monitoring System, Center for
Animal Health Monitoring, Animal and Plant Health Inspection Service,
in Ft. Collins, CO (NAHMS). Following the investigation, the agency
provided complainant a copy of the Report of Investigation (ROI) and
notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant did not request a hearing, and the agency
issued a final decision, finding that complainant failed to prove that
the agency discriminated against him as alleged.
At the time of events at issue herein, complainant worked for another
agency in Chicago, IL, but had previously worked at NAHMS from 1993
through June 2001. He applied for the position but was not selected in
favor of the selectee (EK). In his statement in the record, complainant
asserted that he was the best qualified candidate but was not selected
due to his prior EEO activity when he was employed at the agency and
that the selecting official (SO) was aware of his prior EEO activity;
specifically, he noted that the SO participated in a mediation in January
2000, with regard to a prior EEO complaint.2
The agency, through the SO, stated that she reviewed all applications
but did not conduct interviews; she found that EK and complainant
had similar technical skills and experience with the agency; that,
although EK's experience was in another part of the agency, she worked
on similar projects to those in NAHMS; and that she chose EK instead of
complainant, because EK did not have a record of difficulty in getting
along with others, nor did she have conduct and discipline issues,
as did complainant. The record contained documents showing several
informal efforts to correct complainant's conduct; a Letter of caution
regarding unsuitable comments dated July 2000, and an Alternate Discipline
Agreement, dated April 2001, in which he acknowledged misconduct, in
lieu of a suspension. The SO stated that complainant's conduct issues
and discipline were not the subject of his prior EEO complaint.
In its FAD,3 the agency initially found that complainant failed to
establish a prima facie case of reprisal discrimination, in that, he
failed to show a nexus, or causal connection, between his prior activity
and the instant matter, concluding that his prior EEO activity was too
long ago to establish causality. Next, the agency found that, even
if complainant established a prima facie case, the agency articulated
legitimate, nondiscriminatory reasons, and he did not demonstrate
pretext. In addition, the agency held that his statements denying his
past discipline and misconduct lacked credibility, noting that, in July
2000, he received a Letter of caution, and, in April 2001, he signed an
Alternative Discipline Agreement.
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). In general,
claims of disparate treatment are examined under the tripartite analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
For complainant to prevail, s/he must first establish a prima facie
case 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Once complainant has established a prima facie
case, 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). If the agency
is successful, the burden reverts to the complainant to demonstrate by
a preponderance of the evidence that the agency's reason(s) for its
action was a pretext for discrimination. At all times, complainant
retains the burden of persuasion, and it is his/her obligation to show
by a preponderance of the evidence that the agency acted on the basis
of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
715-716 (1983).
In his appeal statement, complainant, among other things, addressed
his discipline record, his qualifications, and his prima facie case,
particularly the causal connection showing.4 Initially, we note that
complainant objected to consideration of the information included in the
agency's supplemental investigation (SI), which contained, inter alia,
copies of documents referred to by the SO, and he argued that he was
prejudiced thereby. It is the agency's responsibility to develop
"an impartial and appropriate factual record," and the SI advanced
that obligation; nothing in our regulations prohibited the agency
from conducting the SI. The documents contained in the SI speak for
themselves, and, while complainant may dispute their importance, he
cannot challenge their existence.
Complainant downplayed the importance of his past record while previously
employed at the agency; he claimed that he was coerced into signing the
Alternate Discipline Agreement and denied the actions described in the
Letter of Caution; and he questioned whether the prior discipline cited by
the agency constituted a formal record of discipline. Complainant argued
that he was more qualified than EK and the superior candidate; questioned
how the SO could have found otherwise; and demanded copies of EK's answers
to the KSAs and her academic transcripts to demonstrate his supremacy.
Complainant also asserted that he established a prima facie case based
on the SO's participation in a mediation session in January 2000, and an
affidavit he submitted in another EEO case in November 2002, and argued
that the agency's citation to Clark County School District v. Breeden,
532 U.S. 268 (2001), was "irrelevant."
Following the three-part scheme of McDonnell Douglas Corporation v. Green,
supra, for analysis of claims alleging disparate treatment based on
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 (December 6, 1996). Specifically,
in a reprisal claim, and in accordance with the burdens set forth in
McDonnell Douglas, supra, to establish a prima facie case of reprisal,
s/he must show: (1) s/he engaged in a prior protected activity; (2)
the official acting on behalf of the agency was aware of the protected
activity; (3) s/he was subjected to adverse treatment by the agency; and
(4) a nexus, or causal connection, exists between the protected activity
and the adverse treatment.5 Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000.
In the matter before us, we find that complainant failed to establish
a prima facie case of reprisal discrimination. Complainant showed that
he engaged in prior protected activity when he sought EEO counseling in
Agency No. 010099; that the SO was aware of his prior EEO activity as of
January 2000, when she participated in mediation on Agency No. 010099;
and that he was not selected for the position at issue; however,
complainant failed to show a nexus, or a causal connection, between
his prior EEO activity, i.e., when the SO first learned of his prior
activity in January 2000, and his non-selection in July 2005, in that,
over five years is too long a period to establish the required nexus.
Complainant's argument that he showed a nexus confuses the SO's knowledge
that he engaged in prior protected activity with the time period between
her knowledge and the subsequent act of non-selection. Thus, we find that
complainant's non-selection in the instant case did not follow the prior
protected activity within such a close period of time or in such a manner
that a reprisal motive can be inferred. Consequently, we conclude that the
complainant has not established a prima facie case for his reprisal claim
and that the agency did not discriminate against him due to reprisal.
Even assuming, arguendo, that complainant established a prima facie
case of reprisal discrimination, we find that the agency carried its
burden to articulate legitimate, nondiscriminatory reasons for its
non-selection decision. Once a complainant has established a prima
facie case, the burden of proceeding moves to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, supra. The agency's burden,
while not onerous, must provide a specific, clear, and individualized
explanation for the treatment accorded the complainant. Id. In the
matter before us, we find that the agency has met its articulation
obligation to explain to complainant its reasons for not selecting him,
i.e., the SO stated that she concluded that EK and complainant had similar
experience and skill, but that she did not select complainant because of
his prior conduct problems, difficulty in getting along with others, and
record of discipline. We find that the agency articulated legitimate,
nondiscriminatory reason for its actions and that its articulation
frames the factual issue "with sufficient clarity so that [complainant]
will have a full and fair opportunity to demonstrate pretext." Id.
In the McDonnell Douglas scheme, once the agency articulated legitimate,
nondiscriminatory reasons for its actions, the ultimate burden of
persuasion returns to the complainant to demonstrate by preponderant
evidence that the reasons given by the agency for its actions are a
pretext, or a sham or disguise, for discrimination. The complainant
must show that the agency's action was more likely than not motivated
by discrimination, that is, that the action was influenced by legally
impermissible criteria, i.e., that the action was taken in reprisal for
his prior EEO activity. A showing of pretext requires the complainant
to demonstrate that the agency's reasons were not its true reasons
and that its true reasons were based on retaliatory animus. In this
matter, the SO offered an explanation for her selection decision, i.e.,
(i) that EK and complainant had similar experience and skill, and (ii)
that complainant had conduct problems, difficulty in getting along with
others, and a record of discipline; to demonstrate pretext, complainant
must address both reasons.
As to his qualifications, in his rebuttal and comments on appeal,
complainant asserted that he was the superior candidate and should have
been selected. In the first instance, the Commission has held that an
agency has great leeway in its selection decisions. The Supreme Court
has previously held that in the absence of evidence of a discriminatory
motivation, an employer generally "has discretion to choose among
equally qualified candidates...." Texas Department of Community
Affairs v. Burdine, 450 U.S. at 259. In addition, an agency manager
has discretion to choose from among applicants who have different, but,
in the manager's opinion, equally desirable qualifications. See Canhan
v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). The Supreme
Court recently addressed the question of comparative qualifications as
evidence of pretext and held that, to demonstrate pretext, the complainant
must show that her/his qualifications were significantly more superior
than those of the selectee.6 See Ash v. Tyson Foods, Inc., 546 U.S. 454
(2006). Based on our review of the available record, we find that
complainant has not shown that his qualifications were so superior to EK
that retaliation can be inferred or that the SO unreasonably determined
that he and EK had similar skills and experience to perform the duties
of the position.7
The second part of the SO's reason for her selection decision concerned
complainant's conduct issues, i.e., that his personal conduct was often
unsuitable, inappropriate, unprofessional, and negatively affected
his co-workers and that his conduct and behavior were sufficiently
severe that he had a record of discipline with regard to these matters.
Although he asserted otherwise, complainant did not present probative
evidence to demonstrate that the SO's statement was not true and that
the true reason for his non-selection was his prior EEO conduct.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant has not shown that the agency discriminated against him in
reprisal for prior EEO activity. Accordingly, the agency's decision is
AFFIRMED.
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
___8-16-07______________
Date
1 The complainant stated that he requested a final decision in July 2006.
The agency is reminded of its obligation to issue a decision within 60
days of a request. See 29 C.F.R. � 1614.110(b).
2 See EEOC Appeal No. 01A44292 (January 10, 2005) (Agency No. 010099).
Complainant filed a formal complaint on September 26, 2000, based
on reprisal with regard to revision of his job description and grade
classification.
3 The FAD referred to a supplemental investigation (SI), which was not
part of the record initially sent to the Commission. We requested that
the agency immediately provide the SI and send a copy to complainant.
The agency is required to provide a copy of the investigation to
complainant, including any subsequent investigations, and any other
information upon which it based its decision. The agency is reminded that
if it fails to comply with the Commission's regulations and directives,
it may be subject to sanctions. 29 C.F.R. � 1614.404(c).
4 Complainant also stated his objection to certain agency actions
regarding the processing of his complaint. The EEO Management
Directive-110, Chapter 5 (November 9, 1999), defines such complaints as a
"spin-off" complaint and instructs that spin-off complaints should be
referred to the agency official responsible for complaint processing.
We note, also, that our regulations provide that an agency shall dismiss a
complaint that alleges dissatisfaction with the processing of a previously
filed complaint. See 29 C.F.R. � 1614.107(a)(8).
5 To demonstrate nexus based on temporal proximity, the period of
time separating the events must be very close. See Clark County School
District v. Breeden, 532 U.S. 268 (2001) (in order to establish sufficient
evidence of causality, the time period between the employer's initial
knowledge of the prior protected activity and the adverse employment
action must be "very close;" a three month time period was not proximate
enough to establish a causal nexus); EEOC Compliance Manual, Section 8,
Retaliation, pp. 8-18 (to support a finding of unlawful retaliation,
there must be proof that the acting agency official(s) took the action
at issue because of complainant's prior protected activity and sought
to deter complainant or others from pursuing their EEO rights).
6 In Ash v. Tyson Foods, Inc., the Court held that to infer evidence
of pretext from comparative qualifications, complainant must show (1)
that the disparities between the successful applicant's and [her/his] own
qualifications were "of such weight and significance that no reasonable
person, in the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff" (Cooper v. Southern Co., 390
F.3d 695, 732 (2004)); or (2) that [complainant's] qualifications are
'clearly superior' to those of the selectee (Raad v. Fairbanks North
Star Borough School Dist., 323 F.3d 1185, 1194 (9th Cir. 2003)); or (3)
that "a reasonable employer would have found the [complainant] to be
significantly better qualified for the job," along with other evidence
(Aka v. Washington Hospital Center, 156 F.3d 1284, 1294 (C.A.D.C. 1998)
(en banc)).
7 Complainant stated that the record did not contain copies of EK's
answers to the KSAs or her academic transcripts. We note that EK
applied through the agency's internal processes, and her applicant
information is contained at Exhibit 13 of the investigation; inasmuch
as this document constituted her application, the additional material
demanded by complainant, to the extent that it exists, is not necessary.
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0120072521
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072521