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