0120063154
03-26-2008
Charles Smith, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Charles Smith,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01200631541
Hearing No. 280-2005-00118X
Agency No. CRSD200400099
DECISION
Complainant filed an appeal with this Commission from the March 28,
2006 agency decision which implemented the February 2, 2006 decision of
the EEOC Administrative Judge (AJ) finding no discrimination.
In his complaint, complainant alleged that the agency discriminated
against him on the basis of reprisal (prior EEO activity) when:
1. Since November 2001, complainant has been denied the opportunity
to serve as the Acting Director, Office of Outreach; and
2. On August 12, 2003, complainant's supervisor denied complainant's
request to attend an Office of Personnel Management (OPM) course at the
Western Management Development Center in Denver, Colorado, while also
restricting complainant's training to the local geographical area.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation. After timely requesting a hearing,
the AJ issued a decision without a hearing.
In her decision finding no discrimination, the AJ dismissed claim 1
pursuant to 29 C.F.R. ��1614.107(a)(1) and 1614.109(b). In dismissing
claim 1, the AJ found that on May 11, 2004, the agency issued a decision
on the same claim. The AJ also noted that complainant's October 17,
2005 Motion to Amend Complaint by adding that the agency's denial of
the opportunity to serve as Acting Director prevented complainant from
competing and obtaining promotions to GS-15 was an attempt to resurrect
the already adjudicated claim. The AJ noted further that the Motion
to Amend Complaint was also untimely and lacked specificity because
complainant filed his Motion to Amend Complaint two months after the
closing of discovery and did not indicate what promotions were denied
or when the promotions were denied.
Regarding claim 2, the AJ concluded that complainant failed to present
a prima facie case of reprisal because individuals to whom complainant
compared himself had engaged in prior EEO activity having themselves
filed discrimination complaints and, also, that the individuals who
attended training in Denver, Colorado were not similarly situated to
complainant because they attended a different and substantially less
expensive training. The AJ also concluded that even if complainant
had presented a prima facie case of disparate treatment, the agency
had articulated a legitimate, nondiscriminatory reason for its actions,
i.e. budgetary considerations. The AJ further concluded that complainant
had failed to present evidence that others not in his protected group were
allowed to attend the training or that other training was as costly as
the Denver training. The AJ concluded that complainant had also failed
to proffer evidence that the denial of the training was motivated by
retaliation.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he or she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. 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). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
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, a complainant may establish a prima facie case of reprisal by
showing that: (1) complainant engaged in a protected activity; (2) the
agency was aware of the protected activity; (3) complainant was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
As an initial matter, the Commission notes that because this is a decision
issued without a hearing, the decision is subject to a de novo review
by the Commission. See 29 C.F.R. � 1614.405(a).
Upon review, the Commission finds that the grant of summary judgment
was proper because no genuine issue of material fact exists.
Regarding claim 1, the Commission finds that the present claim states
the same claim which was decided by the agency and which was appealed
to and decided by the Commission and was therefore properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1). In Charles Smith v Department of
Agriculture EEOC Appeal No. 01A52966, (July 20, 2006), the Commission
addressed the issue of whether the agency subjected complainant to
discrimination on the basis of reprisal when in November 2001, he was
asked to serve as an Acting Director subject to the restriction that he
not exercise supervisory responsibility over a female Grants Management
Specialist because of the terms of a settlement agreement into which
the Grants Management Specialist had entered into with the agency in
settlement of a discrimination complaint.
Regarding claim 2, the Commission concludes that the agency has
articulated a legitimate, nondiscriminatory reason for its action in not
sending complainant to the requested training, i.e., the expense and cost
of the requested training on the agency's budget. The Commission notes
that although the initial inquiry in a discrimination case usually focuses
on whether complainant has established a prima facie case, the prima facie
inquiry may be dispensed with where, as here, the agency has articulated
a legitimate, nondiscriminatory reason for its actions. In such cases,
the inquiry shifts from whether complainant has established a prima
facie case and proceeds to the ultimate issue of whether complainant has
shown by a preponderance of the evidence that the agency's actions were
motivated by discrimination. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
Complainant has not shown that the agency's articulated reason for denying
the training was pretextual. Moreover, the record shows that although the
agency denied the Colorado training, the agency informed complainant that
if he found a local course that covered the subject of his interest, that
the course was consistent with complainant's individual development plan
and that the course did not exceed $1,500.00, the agency would approve
the amount. Further, construing the evidence in a light most favorable
to complainant, the Commission finds that complainant has not shown by
a preponderance of the evidence that the agency's action in denying the
training was pretextual or motivated by discriminatory animus.
The agency decision finding no discrimination 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
March 26, 2008
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above-referenced appeal number.
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0120063154
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036