0120070485
08-14-2008
Benjamin A. Miller, Complainant, v. Margaret Spellings, Secretary, Department of Education, Agency.
Benjamin A. Miller,
Complainant,
v.
Margaret Spellings,
Secretary,
Department of Education,
Agency.
Appeal No. 0120070485
Agency No. ED-2005-34-00
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 29, 2006, final decision 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.
During the period at issue, complainant worked as a Management and Program
Analyst, GS-15, Office of Civil Rights. In his formal complaint of May
19, 2005, complainant claimed that the agency discriminated against him
in reprisal for prior protected activity when, (a) in September 2004,
he was not given an award, contending that he was not assigned agency
work in FY 2003; and (b) in December 2004, he was reassigned from the
Office of the Director to the Information Technology Team. Following an
investigation, complainant did not request a hearing before an EEOC
Administrative Judge, and the agency issued a final agency decision
(FAD), finding that the agency did not discriminate against complainant.
Regarding claim (a), the agency found that complainant's prior EEO
complaint in November 2002,1 and a history of conflict with the Director
were sufficient causation to establish a prima facie case. The agency
next found that it articulated legitimate, nondiscriminatory reasons for
its actions, and complainant did not demonstrate pretext. The agency
explained that no employees under the Director were recommended for
awards, and, as to complainant, his management could not evaluate his
performance, because he spent his time on union business and refused to
provide a schedule showing when he was available for agency work.2 In
regard to (b), the agency held that the reassignment did not constitute an
adverse action but explained that complainant was reassigned in order to
provide him an opportunity for agency work commensurate with his level.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the
preponderance of the evidence of record does not establish that
discrimination occurred.
Accordingly, the agency's decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
__08-14-2008________________
Date
1 In general, to demonstrate a causal connection using temporal proximity,
the separation between the employer's knowledge of the protected activity
and the adverse employment action must be very close. See Clark
County School District v. Breeden, 532 U.S. 268 (2001) (holding that a
three-month period was not proximate enough to establish a causal nexus);
EEOC Compliance Manual, Section 8, Retaliation, pp. 8-18 (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).
2 Complainant's rights as a union officer, per se, do not raise EEO
issues and are not protected under EEO statutes.
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0120070485
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070485