Cecelia A. Rice, Complainant,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMay 11, 2007
0120070876 (E.E.O.C. May. 11, 2007)

0120070876

05-11-2007

Cecelia A. Rice, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.


Cecelia A. Rice,

Complainant,

v.

Mike Johanns,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120070876

Agency No. AMS200500093

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's November 2, 2006 final decision (FAD) 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. Complainant alleged

that the agency discriminated against her on the basis of reprisal for

prior protected EEO activity under Title VII of the Civil Rights Act of

1964 when, on October 14, 2004, the agency imposed a directed reassignment

on her.

The record indicates that complainant participated in previous EEO

activity, beginning in 1999 and concluding in 2001. In the instant

case, complainant alleged that on October 14, 2004, she was verbally

informed of a reassignment in the form of a duty station change, by

her Assistant Branch Chief. The agency's FAD found that complainant

failed to establish a prima facie case of retaliation, as she failed

to demonstrate a causal connection between her prior EEO activity in

1999-2001 and the agency's actions in 2004. The FAD also found that the

agency articulated legitimate, nondiscriminatory reasons for its actions,

and complainant failed to proffer evidence which shows pretext.

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 Administration,

EEOC Request No. 05960403 (December 6, 1996). Specifically, in a

reprisal claim, 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 her 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 action. Whitmire v. Department of

the Air Force, 01A00340 (September 25, 2000).

In the instant case, we find that complainant engaged in prior protected

activity in 1999-2001, which was resolved by a settlement agreement.

We find, however, that complainant fails to show a prima facie case

of reprisal discrimination because she has not shown a nexus between

her protected activity and the reassignment. The record shows that

complainant's protected activity was between 1999-2001, and her duty

station was changed from the agency's Dunedin, Florida Plant to the

agency's Bradenton, Florida Plant effective October 31, 2004. We find

that the three (3) year span between complainant's prior Title VII

activity and the reassignment at issue is insufficient to demonstrate

the required causal nexus as described above. As such, we find there

is no evidence that complainant's prior protected activity was a factor

in her being reassigned to the Bradenton Plant.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, 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.

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

_______5/11/07____________________

Date

__________________

Date

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0120070876

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070876