01A05188
02-12-2002
Brawleigh J. Graham, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Brawleigh J. Graham v. Department of Justice
01A05188
February 12, 2002
.
Brawleigh J. Graham,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A05188
Agency No. B-94-2148
Hearing No. 140-95-8010X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD II) dated July 6, 2000, concerning his equal employment opportunity
(EEO) 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 pursuant to 29 C.F.R. �
1614.405. Complainant alleged he was discriminated against on the bases
of race (American Indian) national origin (Native American) and reprisal
(third party) when he was not selected for the position of Community
Relations Specialist (CRS), to be based at the Community Relations Service
(CR Service), Department of Justice offices in Atlanta, Georgia.
INTRODUCTION
This matter was previously before the Commission (Graham v. Department
of Justice, EEOC Appeal No. 01956003, (June 19, 1997) (Graham I)),
on an appeal from an agency decision finding no discrimination.
The agency decision was made after an Administrative Judge (AJ) issued
a recommended decision without a hearing finding no discrimination.
The Commission affirmed, in part, and reversed, in part, and remanded
the matter to the agency to conduct a supplemental investigation limited
to certain issues. The Commission also ordered that the matter was to
be submitted to an AJ, at the hearing stage, for further processing,
if requested by the complainant. Complainant requested a hearing and
the matter was heard by an AJ on November 12, 1999.
ISSUED PRESENTED
Whether agency officials intentionally and discriminatorily misled the
complainant into not applying for the CRS position under two vacancy
announcements and/or did not inform him of the vacancies, based on his
race, national origin or in retaliation for having a relationship with
someone who had previously raised an EEO allegation with the agency.
BACKGROUND
The complainant was selected for the CRS position, was sent in June
1990 to Kansas City to receive training, and was waiting to be formally
hired, subject to Office of Program Management (OPM) rating. The hiring
process could not be completed until the OPM paperwork was completed.
The complainant was not paid during his training period, however, his
travel expenses and room and board were paid by the agency. On August
30, 1990, pursuant to the Gramm-Rudman Hollings Act of 1985 (Gramm-Rudman
Act), a hiring freeze (freeze) was imposed upon the agency and the entire
federal government. The freeze ended on November 20, 1990.
In Graham I, the Commission reviewed whether complainant proved that he
was discriminated against when, although selected in May 1990 for the CRS
position, he had not been officially hired, as a government-wide hiring
freeze was instituted on August 30, 1990, prior to him receiving security
clearance and final approval. The vacancy announcement (89-43-D),
complainant's application, and complainant's selection were cancelled
as a result of the freeze. After the freeze ended, approximately four
months later, the agency resumed hiring. The position was announced
on two more occasions. After the second announcement (91-09-B),
a candidate GA (Black) was selected but was unable to get security
clearance; consequently, the agency issued a third announcement (91-45-B)
for the position at which time another candidate, WC (White, Hispanic),
was selected and hired. Five months after WC was hired the complainant
was given official notice of what had occurred. Complainant alleged that
he had been attempting to find out the status of his employment and that,
not being aware of the subsequent announcements, he did not reapply for
the position.
The agency issued a final agency decision (FAD I), dated July 11, 1995,
adopting a Recommended Decision (RD)issued on May 9, 1995, by an EEOC
AJ pursuant to 29 C.F.R. �1614.109(e)(3). FAD I found that complainant
failed to establish a prima facie case of discrimination because he failed
to establish that he applied for the position for which WC was selected.
Consequently, complainant failed to demonstrate that there were any
genuine issues of fact as his selection was cancelled due to the hiring
freeze and he did not apply under the subsequent announcements.
In Graham I, the Commission found that the agency improperly supplemented
the RD by discussing an issue in FAD I which the AJ did not address.
FAD I referenced allegations in the record that supported complainant's
contention that he was not informed of the subsequent announcements in
order to keep him from reapplying so that the selecting official (SO)
and the CR Service director (RMO) could hire a Hispanic. FAD I concluded
that even assuming that the SO and the RMO did not inform complainant
of the subsequent announcements with the purpose of preventing him from
reapplying, there was no Title VII violation as being Hispanic was a
bona fide occupational qualification (BFOQ)for the position.
In Graham I the agency limited its contentions to the AJ's conclusion
that complainant failed to establish a prima facie case of discrimination
and did not discuss the supplemental BFOQ argument made in FAD I.
The Commission found the supplemental argument to be contrary to the legal
basis of the RD. The complainant had contended that agency officials
(SO and RMO) purposely kept him from reapplying for the position for
discriminatory reasons by not informing him of the fact that his selection
had been cancelled and that it had issued new announcements. The record
also indicated that the complainant contended that he was intentionally
misled into believing that his documentation was being processed with the
purpose of keeping him from reapplying. Graham I stated that the record
indicated that complainant contacted the agency on several occasions after
his selection to inquire about the processing of his employment documents.
In the EEO Counselor's Report, the SO is credited with stating in response
to complainant's telephone call that, "he did not tell [complainant]
that the vacancy announcement was reopened because he knew [the RMO]
wanted someone else to fill the position." Complainant also contacted
the agency's personnel office, the RMO, and the Office of Personnel
Management (OPM).
Graham I found that to the extent that complainant alleged he was
actively misled by the agency in order to keep him from reapplying by not
responding to his inquiries and intentionally misinforming him of his
status for discriminatory reasons -when it knew that his selection was
cancelled and the vacancy was reopened- then there were genuine issues
of fact that merited further investigation. Graham I ordered the agency
to conduct a supplemental investigation during which the complainant
could present evidence of his inquiries to the agency regarding his
employment status.
Graham I did not overturn the AJ's findings that complainant had not been
hired by the agency, that his selection had been vacated as a result of
a government-wide freeze and that complainant did not reapply for the
position under either of the two announcements issued after the freeze was
lifted. It did not overturn the agency's finding that complainant failed
to meet his burden of proving discrimination on the basis of reprisal.
Graham I limited the supplemental investigation to the issue of whether
or not agency officials intentionally and discriminatorily failed to
inform and/or misled complainant, in order to prevent him from applying
for the position under the subsequent two announcements. With regard
to the agency's BFOQ defense, Graham I ordered that the investigation
was to also include information clarifying when and how agency officials
concluded that a Hispanic was needed to perform the essential elements
of the position.
A supplemental investigation was conducted. Complainant alleged that the
freeze, as to his position, was never substantiated. Further, he asserted
that although he communicated with agency personnel, he was never told
that his position was frozen, or that his position was no longer frozen.
Complainant stated that he was misled by agency and OPM officials.
The complainant also alleged that he was retaliated against by the RMO
because he was an acquaintance of JD (Black), who had previously filed
an EEO charge against the agency.
A Supplemental Investigative Report (SIR) was submitted to the agency on
August 12, 1997. Complainant received a copy of the SIR and requested a
hearing before an EEOC AJ. The AJ held a hearing on November 12, 1999,
and issued a decision, with findings of fact finding no discrimination,
on May 24, 2000. The agency issued its final decision (FAD II) on July 6,
2000, finding no discrimination.
CONTENTIONS ON APPEAL
The complainant contends that the agency improperly altered the scope
of the SIR and that the agency failed to investigate whether being
Hispanic was required for the position. The complainant contended that
the AJ improperly limited the hearing to exclude evidence that the agency
used the freeze as a pretext to avoid hiring him and instead to hire an
Hispanic. Complainant also argued that the agency did not investigate
the BFOQ issue and the AJ ignored the BFOQ issue. The complainant also
contended that the AJ ignored direct evidence of discrimination and
placed an unreasonable burden of proof on the complainant. He further
alleged that the agency retaliated against him when it failed to notify
him that the position was frozen and failed to advise him of the two
subsequent announcements.
On appeal, the agency states that agency officials did not intentionally
or discriminatorily mislead the complainant about the subsequent
announcements, that the agency did not discriminate against the
complainant when the agency filled the position, that the agency and
the AJ fully investigated the matter as ordered by the Commission,
and that the AJ properly did not consider the complainant's claims
concerning the BFOQ issue.
ANALYSIS AND FINDINGS
Standard for Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
Disparate Treatment
The complainant's complaint alleges a claim of disparate treatment on
the bases of race and national origin. A claim of disparate treatment
is examined under the three-part analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). For the complainant
to prevail, 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). 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). Once the agency has met
its burden, the complainant bears the ultimate responsibility to persuade
the fact finder 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).
The elements of establishing a prima facie case vary with differing
factual situations. In the instant case complainant may establish a
prima facie case by showing that he is protected from discrimination
under Title VII; that the agency had a vacancy for which it was seeking
applicants; that complainant applied or, as in this case, did not apply
because of alleged improper action of the employer; that the complainant
was qualified for the position vacancy; and, that the agency selected a
person outside complainant's protected group. See Jones v. United States
Postal Service, EEOC Appeal No. 01890904 (May 25, 1989). The AJ found
that the complainant established a prima facie case because the agency
had announced the position, the complainant was initially selected for
the position, he alleged that he was not informed or misinformed of his
need to apply for the position after it was cancelled by the freeze,
and the position was filled by a person outside of the complainant's
protected group.
The AJ determined that the agency had articulated a legitimate
nondiscriminatory reason for its action. The AJ found that the
Gramm-Rudman Act terminated the complaint's application process and
the agency informed the complainant that the position was cancelled.
Further, the AJ found that the agency denied misinforming or misleading
the complainant into not reapplying.
There was testimony in the record that everyone knew about the
Gramm-Rudman Act and the freeze. The agency's Personnel Management
Specialist (LM) testified that the agency never knew when a freeze would
hit and that it would be announced suddenly. LM testified that when the
agency got the word there was a freeze, it was effective immediately,
and everything would stop right there. She testified that the freezes
were due to budget reasons. Further, when a freeze was announced,
everything would be shut down and cancelled out because the agency was
not allowed to go forward with hiring. She testified that positions
would not reopen automatically and individuals hired after a freeze were
not hired pursuant to their pre-freeze applications. She testified
that if an announcement was cancelled, the agency could not use it.
LM testified that the agency is not required to inform applicants that
a freeze has been lifted and that they may reapply.
The associate director (ET) for C R Service testified that the official
personnel hiring authority for the position was the Justice Management
Division (J.D.) of the Department of Justice. She testified that
although the director (RMO) of the program may have had the authority
by virtue of the position, the director delegated the authority to the
regional director. She testified that when the agency wanted to fill a
position that has been cancelled the process was to start over. J.D. is
notified by the agency, a job announcement is created, and the position
is posted. ET testified that she spoke to the complainant a couple
of times and believed she had called him to tell him that the freeze
had begun. She testified that they talked about the freeze and what
that meant for the job for which he had been selected. She did not
recall if she had spoken to the complainant during the period of time the
position was re-advertized or after the position had been re-advertised.
She testified that prior applicants wound not be contacted or called,
that the position would be re-advertised and that everybody would have
to reapply. She testified that it would have been impossible to notify
prior candidates. ET testified that she would not have intentionally
failed to respond to calls from the complainant or have directed her staff
not to respond. ET testified that neither the SO or the RMO instructed
her to not notify the complainant that the position was frozen.
SO did not contact the complainant or any other prior applicant to
inform them of the position's readvertisement No one from the agency
contacted the complainant after the freeze was lifted. Although there
were two Hispanic surnamed individuals on the �best qualified� list, the
SO selected GA, a Black, for the position. After GA was disqualified the
position was readvertized. No one from the prior list of eligibles was
placed on the third list. SO testified that he spoke to the complainant
when the freeze was on and told him that he did not know when it would
come off. SO testified that had the complainant called during the period
of time that the position was being readvertized, he would have told him
that the position was being readvertized. SO testified that he did not
call the complainant to tell him the position was being readvertized
because that would be burdensome because then he would have to call
everyone who was on the list. SO testified that there could be trouble
if he missed someone.
SO testified that he never told the complainant that the position was
not being filled. Also, he denied telling the EEO counselor that he
did not tell the complainant that the vacancy announcement was reopened
because the SO knew that the RMO wanted someone else to fill the position.
SO testified that he did not select the third candidate to please the RMO
or because the RMO wanted WC. SO testified that he did not recall ever
telling JD that the RMO had insisted or ordered SO to hire a Hispanic
for the position. SO testified that he never talked with the RMO on any
of the three vacancy announcements about filing the position. He denied
having any conversation with the RMO concerning the hiring of WC.
Where the agency has articulated a legitimate, nondiscriminatory reason
for the personnel action at issue, the factual inquiry can proceed
directly to the third step of the McDonnell Douglas analysis, the ultimate
issue of whether the complainant has shown by a preponderance of the
evidence that the agency's actions were motivated by discrimination.
U.S. Postal Service Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714
(1983). The Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. The burden now returns to
complainant to demonstrate that the agency's reasons were not its true
reasons for its action but were a pretext for discrimination, i.e., the
agency's reasons were nor true or were based on prohibited considerations
of race/color, disability, or national origin. The Commission must now
determine whether the record establishes that the proffered reasons
were not the true reasons for the agency not filing the job with the
complainant. This can be established either directly by a showing that
a discriminatory reason more likely motivated the agency or indirectly
by a showing that the proffered explanation is unworthy of credence.
Texas Department of Community Affairs v. Burdine, 450 U.S. (1981).
The Commission finds that the AJ's conclusion that the complainant
failed to prove that the agency's position was false or pretext for
unlawful discrimination is based on substantial evidence. In Graham I,
the Commission held that the complainant had not been hired by the agency,
his selection had been vacated as a result of a government-wide freeze and
that complainant did not reapply for the position under either of the two
announcements issued after the freeze was lifted. On remand, the issue
was whether or not agency officials intentionally and discriminatorily
failed to inform and/or misled complainant, into not applying for the
position under the subsequent two announcements. The AJ found that there
was no evidence that the agency hid from the complainant the existence
of the freeze or its implications. The testimony of agency officials
established that the agency did not try to prevent the complainant from
applying for the subsequent openings. The complainant testified that
even when he called Washington, D.C., he was told that the position
would be reopened and that he needed to reapply. The complainant did
not testify that the agency told him that his position was not subject
to the freeze or that his selection would survive the freeze.
The complainant, after the position was filled, wrote two letters to the
agency inquiring about the position, and stating that he understood that
the director wanted to hire an individual from her own ethnic background.
The complainant contended that the supplemental investigation and the AJ
ignored the Commission's order to investigate the facts and circumstances
concerning the BFOQ issue raised in FAD I. The investigation was to
include information clarifying when and how agency officials concluded
that a Hispanic was needed to perform the essential elements of the
position. FAD I pointed out that the record contained allegations that
supported complainant's contention that he was not informed of the
subsequent announcements in order to keep him from reapplying so the
selecting official (SO) and the director (RMO) could hire a candidate
(Hispanic) not of complainant's protected group. The EEO counselor's
report was the basis for these allegations which were attributed to SO.
However, the EEO counselor in her supplemental investigation affidavit
stated that she could not recall details of her conversation with SO.
SO testified that he did not tell the EEO counselor that he did not tell
the complainant that the vacancy was reopened because he knew that the
RMO wanted someone else to fill the position.
SO in his affidavit testified that he never concluded that an Hispanic was
needed to perform the essential elements of the position. He testified
that RMO did not tell him that an Hispanic was needed to perform the
essential elements of the position. SO testified that selecting WC had
nothing to do with him being an Hispanic. RMO testified that WC's race
had nothing to do with his selection. Further, she testified that she
did not direct the SO to hire anyone because of their race. The record
does not reflect that any agency official stated that being Hispanic
was a BFOQ for the position. The complainant was initially selected
for the position and he was not a Hispanic. The second selectee was Black.
To the extent that the complainant seeks to have the BFOQ issue considered
as direct evidence of discrimination or as evidence of pretext, the
Commission sees no basis for doing so. The agency did not assert
the BFOQ defense in the supplemental investigation or in the hearing.
There was no evidence that any agency official considered being Hispanic
as an essential element of the position. The complainant has failed to
meet his burden in this regard.
The complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
race and national origin.
Retaliation
The complainant claimed that the agency retaliated against him because
of his relationship to JD, who had recommended the complainant for the
position. JD had prior EEO activity with the agency. The statutory
retaliation clauses prohibit any adverse treatment that is based upon a
retaliatory motive and is reasonably likely to deter the charging party
or others from engaging in protected activity. Title VII prohibits
retaliation against someone so closely related to or associated with the
person exercising his or her statutory rights that it would discourage
that person from pursuing those rights. EEOC Compliance Manual on
Retaliation at 8-10 (May 20, 1998).
Graham I stated it did not overturn the agency's finding that
complainant did not meet his burden of proving discrimination on the
basis of reprisal. The AJ revisited the issue and found that JD had been
involved in EEO protected activities against the agency, that the RMO
knew of the involvement, that the RMO knew of the relationship of the
complainant to JD, and the complainant was not hired into the position.
The AJ found that the complainant had not shown a causal connection
between the complainant's relationship and the agency's failure to hire
or contact the complainant. We find that the AJ correctly concluded that
complainant failed to present evidence that the adverse action followed
the protected activity within such a period of time and in such a manner
that a reprisal motive may be inferred.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We discern no basis to
disturb the AJ's decision. 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 agency's final decision.
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
February 12, 2002
Date