0120123333
12-15-2005
Complainant v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Complainant
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120123333
Hearing No. 570-2008-00807X
Agency No. F-07-6322
DECISION
On August 28, 2012, Complainant filed an appeal from the Agency's July 26, 2012, final order 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether the EEOC Administrative Judge (AJ) properly denied Complainant's request for sanctions and a finding of an adverse inference and (2) whether substantial evidence of record supports the AJ's decision that Complainant failed to establish that the Agency discriminated against her on the bases of race, sex, national origin, and reprisal for prior EEO activity when it reassigned her to the Agency's Counterterrorism Division.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Special Agent (SSA) at the Agency's International Training and Assistance Unit (ITAU), Law Enforcement Program Section (LEPS), Training and Development Division (TD), in Quantico, Virginia. Complainant contacted an EEO Counselor on May 2, 2007. On May 30, 2007, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (Hispanic),1 sex (female), national origin (Mexican), and age (48) when it reassigned her to the Agency's Counterterrorism Division (CTD) for one year. In a November 6, 2007, letter to the Agency's EEO Officer, Complainant sought to amend her complaint to include reprisal for prior protected EEO activity as a basis for the complaint. She subsequently withdrew age as a basis.
Complainant, who began her career at the Agency in 1995, worked at the Agency's McAllen Resident Agency (RA), San Antonio, Texas Division between 1998 and 2002. In late 1997 or early 1998, Complainant filed two EEO complaints alleging that the Agency discriminated against her on the bases of sex and national origin in connection with work assignments and the denial of training.
In 2002, Complainant became a Supervisory Special Agent (SSA) at the Agency's ITAU in Quantico, Virginia. She became the Program Manager for the TD's National Academy Unit (NAU) International Program in 2005. Around October 2006, Complainant applied for a public corruption SSA position in the McAllen RA. At some point, she also applied for a position in the Agency's Houston office. Complainant's first-level supervisor, the TD Unit Chief (S1); her second-level supervisor, the LEPS Section Chief (S2); and the TD Assistant Director (S3) signed a form recommending Complainant for the McAllen RA position on October 31 and November 1, 2006. They signed a form recommending her for the Houston position on February 5 and 8, 2007.2 Complainant was not selected for the positions. In an annual performance appraisal that Complainant received on January 16, 2007, S1 rated Complainant "Outstanding." S2 concurred in the rating.
On March 29, 2007, S1 informed Complainant that she was selected for a one-year reassignment to the Agency's Counterterrorism Division (CTD). By letter dated March 30, 2007, the Executive Assistant Director also informed Complainant of the reassignment. The letter stated that the assignment would begin in April 2007, that it would involve opportunities related to the Agency's counterterrorism mission, and that Complainant's transfer would "provide[] CTD with additional much-needed manpower." The letter also stated that Complainant could apply for promotional positions during the one-year period and that, at the end of the period, Complainant could apply for posted field supervisory positions, could return to the TD at her current supervisory level, or could leave the Agency's Management Program and take an assignment as an investigative Agent.3
The Agency transferred 12 SSAs, including Complainant, from the Training Division to CTD. The transferees included seven White males, one Black male, one Asian male, two White females, and one Hispanic female (Complainant).4 The record does not disclose the transferees' national origins. The record indicates that five of the transferees, including Complainant, filed formal EEO complaints regarding the reassignment to CTD.
Pursuant to the Agency's Transfer Policy, all Special Agents may be transferred at any time to meet the Agency's organizational and program needs. According to the Policy, all Special Agents accept the possibility that they may be transferred as a condition of employment.
Complainant told the EEO Investigator that no one told her that she was being considered for reassignment and that she had no input into the decision to transfer her. In addition, she stated that S1 told her that he, too, had just learned of the transfer; that he had no input into the decision; that S3 told him that the decision was not negotiable and could not be mitigated; and that she was to report to CTD on April 9, 2007. Complainant tried to speak with S3 but was told that he was not available. She stated that the reassignment to CTD caused a significant hardship for her because the long commute prevented her from giving attention and presence to her young son. Complainant asserted that the Agency did not require single parents to move to CTD, and she argued that she deserved the same consideration that non-minority parents received.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on July 26 and 27, 2011.
Complainant testified that she had "some challenges" working with S2 regarding "retrainers" of NAU graduates and that S2 denied her request to attend a conference in Corpus Christi, Texas. She stated that she tried several times to meet with S3 to discuss the impact that the transfer had on her family but that he was never available. She also stated that the Assistant Deputy Director met with the individuals who were transferred to CTD and that he told them that he had asked for the names of ten TD people to be transferred to CTD, that he had requested good performers, and that he was not involved in the selection process. At the meeting, some transferees asked to be assigned to the CTD site at Agency Headquarters because of the difficult commute to the CTD site to which they were originally assigned. The Agency subsequently granted Complainant's request to be assigned to the Headquarters building. Complainant asserted that that a White male (Employee 1) who was on the transfer list never reported to CTD, that a White female (Employee 2) reported later because of personal matters, and that some of transferees retired and others "stepped down." She acknowledged that Employee 1 received a promotion to a position at Headquarters.5
S1 testified that, at the end of a regular management meeting with the Unit Chiefs, S3 announced that 12 employees would be transferred to CTD and that it was not negotiable. According to S1, S3 stated that CTD initially asked for 30 people and that S3 agreed to send 12 employees. S3 told S1 that the selection criteria were the amount of time the employees had been at TD and whether the employees had sought career advancement. Two of the four SSAs in S1's unit, Complainant and a White male, were transferred to CTD. S1 testified that S3, who did not seek S1's input prior to the transfer announcement, did not often request input from the Unit Chiefs. He also testified that S2 did not discuss Complainant's transfer with him prior to the announcement.
S1 further testified that, "a couple of months" before the transfer decision, S2 informed him that Complainant had not been chosen for the McAllen RA position for which she had applied. S1 stated that S2 told him that someone at the McAllen RA said that Complainant had filed an EEO complaint. According to S1, S2 "said that [Complainant] had worked in that office before and she had a cloud over her head in that office and that she would never get a job there." In S1's opinion, S2 did not seem to disapprove of the attitude at the McAllen RA. S2 did not indicate that he would take action against Complainant because of her EEO activity and never told S1 that he would use it against her. S2 never raised the matter of the prior complaint with S1 again, and S1 had no knowledge to suggest that the prior complaint had anything to do with Complainant's transfer to CTD.
S1 believed that S2 did not like Complainant because of her tendency to be outspoken and to express displeasure with S2's actions. When asked if he believed that Complainant's gender had anything to do with S2's attitude toward her, S1 replied, "It may have. I think it was more the way she, I don't want to say put him on the spot, but when he . . . ." S1 then described an incident when Complainant asked S2 about computers that he had promised but not yet provided to the office. According to S1, S2 "didn't like that. He didn't like the fact that she put him on the spot." S1 testified that he had not seen other employees put S2 on the spot. He described S2 as a micro-manager who wanted things done his way, often gave S1 a hard time, and usually did the opposite of what S1 and other Unit Chiefs suggested.
The former Section Chief of the New Agents Training Program Section (S4) testified that, in early 2007, S3 informed her and S2 that the Assistant Deputy Director wanted the Training Division to transfer employees to CTD. S3 met with S4 and S2 to discuss the transfer and to obtain the Section Chiefs' opinions. According to S4, their primary focus was on employees who had been at TD for four or four-and-one-half years or longer. In addition, S4 stated that they wanted to transfer employees who had good work ethics and that they did not want to impede TD's ability to carry out its responsibilities. S4 testified that no one discussed anyone's race, gender, national origin, or prior EEO activity during the meeting. Further, she did not recall S2 or S3 speaking negatively about the any of the candidates during the meeting.
S4 stated that S3 gave her and S2 a chart that listed 31 employees who had been in TD for at least four years. S4's copy of the chart, identified as Agency Exhibit 7, contained S4's handwritten notes from the meeting. The chart identified the unit where each employee worked and noted the length of time that the employee had been at TD. In a column labeled "TDY Recommendation," S3 had typed "yes" for 16 employees, including Complainant, and "no" for the other employees.
During the meeting, S4 wrote notes about the discussion on her copy of the document. For example, she noted that one employee could not be transferred because he was in Iraq, indicated that two employees were in the group that taught tactical driving, and wrote the names of two employees who were not listed on the chart. S4 believed that the latter two employees were added based on their time at TD and their experiences. In the "TDY Recommendation" column, S4 wrote "no" next to some names where S3 had typed "yes" and wrote "yes" next to some names where S3 had typed "no." S4 wrote "yes" in the recommendation near Complainant's name, but she could not recall anything that was said about Complainant during the meeting. Next to the name of one employee (Employee 3), S4 wrote, "Single father, raises three kids." She testified that she wrote the notation because she wanted to convey the information to S3. She noted that S3 had already marked Employee 3 as a "no" and that she had written a notation stating, "Two guys in overseas." S4 believed that Employee 3 was part of a unit that provided an overseas survival awareness program.
In addition, S4 testified that S3 and S2 also had copies of the chart, but she did not know if they wrote notes on their copies. She stated that no one ever asked her for any documents related to this matter. S4 gave her copy of the chart to the Agency's attorney two or three weeks before the hearing, when the Agency's attorney called her about the case.
S3 testified that he was familiar with the chart, that he believed that he created it, and that he, S2, and S4 used it as a working document during the transfer selection process. S3 wrote notes about the employees on his copy of the document, but his notes were not as voluminous as those of S4. He stated that, approximately two to two-and-one-half years before the hearing, he gave a copy of the document to the attorney who previously represented the Agency regarding the instant complaint.
S2 testified that he recognized the chart and that he, S3, and S4 used the document as a platform for discussions about whom to select for transfer. He did not recall making any notes on the document, but he stated that it was possible that he, S3, and S4 made notes on it during the meeting.
At the hearing, Complainant's attorney moved for an adverse inference regarding the document. Noting that the Agency did not produce the document with S3's notes on it, Complainant's attorney asked for an adverse inference that the notes provided evidence that would support Complainant's discrimination and reprisal claims. Complainant's attorney reiterated the request after the hearing. In an August 11, 2011, letter to the AJ, the attorney argued that the AJ should sanction the Agency by taking an adverse inference and should conclude that the Agency did not provide the notes because they indicated that Complainant's race, sex, national origin, and prior EEO activity were discussed during the meeting and were motivating factors in the transfer decision.
In response, the Agency argued that sanctions were not warranted. The Agency stated that present Agency counsel first became aware of Agency Exhibit 7 during litigation preparation, when S4 provided the document, and that Agency counsel immediately forwarded it to the AJ and Complainant's attorney. Noting that S2, S3, and S4 testified at the hearing, the Agency argued that Complainant had an opportunity to question them about the document and any notes that they may have written on it. In addition, the Agency stated that S2 transferred from TD to the Agency's Finance Division in May 2007 and never indicated that he had the document after his transfer. The Agency submitted a sworn declaration in which the attorney who previously represented the Agency in this matter stated that he did not recall seeing the document during the time that he represented the Agency, that he did not receive a copy of the document from S2 or S3, and that he did not contact S4 about the case.
Complainant replied that the Agency was responsible for maintaining any notes that S2 and S3 took during the meeting discussing the selection of transferees. In addition, noting that S3 testified that he provided a copy of the potential-transfer list to the former Agency counsel and that the former counsel denied receiving the document, Complainant argued that the former counsel's statement impeached S3's credibility. In response, the Agency argued that S3's confused recollection about the document did not undermine the credibility of all of S3's testimony.
AJ Decisions
In a June 12, 2012, Denial of Adverse Inference, the AJ denied Complainant's request for sanctions. The AJ noted that the Agency was responsible for preserving documentation such as the potential-transfer list. He found, however, that there was no evidence that the Agency's prior counsel or witnesses lost the copies of the document in bad faith. In addition, the AJ expressed concern about "determining exactly what the adverse inference would be." He concluded that there was no evidence that race, national origin, or prior EEO activity was considered when determining whom to transfer. On that point, he noted that S2, S3, and S4 testified at the hearing, that they were subject to cross-examination, and that there was no evidence to suggest that impermissible considerations played a role in the transfer decisions. Further, the AJ found that the uncontroverted testimony established that the Agency did not transfer Employee 3 because he was needed for the overseas survival awareness program rather than because he was a father.
On June 21, 2012, the AJ issued a decision finding that Complainant failed to prove that the Agency discriminated against her on the basis of race, sex, national origin, or prior EEO activity. Noting that he had observed the witnesses and evaluated their credibility in light of their demeanor, the AJ stated that he "generally found the witnesses credible." Further, the AJ expressly found that S4 "was a very impressive witness, and she gave credible testimony."
The AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for transferring Complainant. He noted that counterterrorism was the Agency's top priority, that Complainant was transferred in accordance with the Agency's Transfer Policy to meet the Agency's needs, that she was selected because she was an excellent employee, and that S2 believed that reassigning Complainant would enable her to move up in the Agency while furthering the Agency's mission.
The AJ concluded that Complainant failed to show that the articulated reasons were a pretext for discrimination. Noting that the Agency transferred nine men and three women of varying races and national origins, the AJ found no evidence that any of Complainant's protected bases was a motivating factor in the decision to transfer Complainant. With respect to Complainant's claim that the Agency failed to consider that she had a small child at home, the AJ found no evidence that the Agency allowed men to choose their assignments to help with their child-care arrangements. Further, assuming that S2 was aware of Complainant's prior EEO activity, the AJ found that Complainant failed to establish a causal connection between the protected activity and the transfer. The AJ concluded that that Complainant's prior EEO activity, which occurred in the late 1990's, was too far in the past to suggest a retaliatory motivation for the 2007 transfer.
On July 26, 2012, the Agency issued a final order fully implementing the AJ's determination that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, argues that the Agency improperly destroyed evidence and that the destruction of evidence warrants sanctions. She asks the Commission to take an adverse inference in her favor. Asserting that "Agency management officials considered non-merit factors related to family status when making the transfer decision," Complainant argues that the Commission should infer that the missing documents likewise reflected consideration of Complainant's race, sex, national origin, and prior EEO activity. She suggests that an appropriate inference "could, at a minimum, be simply that men were given their choice of assignments if it helped their child care situation." Alternatively, Complainant argues that, if the Commission accepts the Agency's assertion that S3 did not provide his notes to prior Agency counsel, then the Commission could sanction the Agency by finding that none of S3's testimony is credible. According to Complainant, a finding that S3's testimony was not credible would result in a finding that Complainant established pretext.
Complainant further argues that the AJ erroneously relied on S4's testimony. Complainant asserts that S4 was not in her chain of command and therefore played no role in the decision to recommend or approve her transfer. Complainant also asserts that the Agency's articulated reasons are not worthy of credence and that Agency officials' inconsistent and contradictory statements constitute evidence of pretext. For example, Complainant asserts that officials disagreed about whether they considered employees with a minimum of four years or four and one-half years, whether the Assistant Deputy Director asked for the names of ten or thirty employees to transfer to CTD, and whether S2 consulted with S1 before the transfer decision. Citing her testimony that she had "some challenges" with S2 and S1's testimony that S2 did not like her, Complainant argues that the real motivation for her transfer was discriminatory and retaliatory animus. Finally, asserting that S2 learned of her prior EEO activity approximately two months before the beginning of the transfer process, Complainant argues that the temporal proximity raises an inference of retaliation.
In response, the Agency argues that sanctions, such as an adverse inference, are not appropriate in this case. The Agency asserts that S2, S3, and S4 were the selecting officials involved in the transfer decisions and that they were the only individuals present at the meeting where they discussed the chart of potential transferees. The Agency notes that the three officials testified at the hearing on Complainant's complaint and that Complainant had an opportunity to question the officials about the meeting and any notes that they may have written on their copies of the chart. Thus, according to the Agency, the absence of S2's and S3's copies did not unduly prejudice Complainant. The Agency argues that it did not act in bad faith and that there is no evidence to support Complainant's assertion that the missing copies could indicate that the three officials discussed Complainant's protected bases during the meeting. Arguing that the AJ was in the best position to determine whether the absence of S2's and S3's charts prejudiced Complainant, the Agency contends that the AJ properly denied Complainant's request for an adverse inference.
In addition, the Agency argues that the AJ properly found that Complainant failed to prove that any of her protected bases was a motivating factor in the decision to transfer her to CTD. The Agency contends that the AJ properly relied on witness testimony, accurately determined that the Agency had articulated legitimate, nondiscriminatory reasons for its action, and correctly found that Complainant failed to show that the articulated reasons were pretextual.
STANDARD OF 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. Nat'l Labor Relations Bd., 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). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. See 29 C.F.R. � 1614.405(a). An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Request for Sanctions
The Commission has exercised its inherent authority to enforce its Part 1614 regulations by ordering sanctions in response to various violations. See, e.g., Kugler v. U.S. Postal Serv., EEOC Appeal Nos. 0120092479, 0120092480 (July 30, 2010) (upholding an AJ's sanction against complainant for failure to attend a scheduled hearing), request for reconsid. denied, EEOC Request No. 0520100564 (Nov. 12, 2010); Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005) (upholding an AJ's imposition of sanctions, a finding in complainant's favor, due to agency's failure to provide investigative reports). Sanctions must be tailored in each case to address appropriately the underlying conduct of the party being sanctioned. Gryder v. Dep't of Transp., EEOC Appeal No. 0720070078 (Aug. 13, 2009). A sanction may be used to deter the non-complying party from similar conduct in the future as well as to remedy equitably the opposing party. Id. If a lesser sanction would suffice to meet these objectives, an AJ may be abusing his or her discretion by imposing a harsher sanction. Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007) (citing Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000)). Factors pertinent to "tailoring" a sanction or determining whether a sanction is warranted include the extent and nature of the non-compliance; the justification presented by the non-complying party; the prejudicial effect of the non-compliance on the opposing party; the consequences resulting from the delay in justice, if any; and the effect of the non-compliance on the integrity of the EEO process. Id.
In this case, Complainant asks the Commission to sanction the Agency for its failure to retain and produce any notes that S2 and S3 may have taken during the meeting discussing the selection of transferees. We find that the AJ properly denied Complainant's request for an adverse inference that the notes indicated that Complainant's race, sex, national origin, and prior EEO activity were motivating factors in the transfer decision. S2, S3, and S4 testified at the hearing; S4 testified that the officials did not discuss anyone's race, gender, national origin, or prior EEO activity during the meeting; the AJ expressly found S4 to be an impressive, credible witness; and Complainant had an opportunity to question the officials about the meeting and the transfer decision. Further, as the AJ noted, Complainant has offered no reason to believe that the missing notes would show anything other than what the officials stated in their testimony. Compare Ponce v. Agency for Int'l Dev., EEOC Appeal No. 0120131173 (June 24, 2013) (denying complainant's request for sanctions when only one of four interview-panel members retained interview notes; complainant offered no reason to believe that the notes would show anything different from what the panelists stated in affidavits and the record contained other evidence concerning complainant's performance in the interview) and Romero v. Nat'l Sec. Agency, EEOC Request No. 05A00002 (Oct. 3, 2000) (AJ properly denied complainant's request for sanctions where lack of selection-panel interview notes and exhibits did not hamper complainant's attempt to show pretext; complainant had access to witnesses and effectively cross examined them) with King v. Dep't of Transp., EEOC Appeal No. 07A40003 (Sept. 29, 2005) (AJ properly issued a finding of discrimination where agency failed to preserve interview notes despite complainant's request and complainant could not challenge agency's reasons for non-selection without the notes), request for reconsid. denied, EEOC Request No. 05A60208 (Jan. 4, 2006).
Complainant suggests that the Commission could infer "that men were given their choice of assignments if it helped their child care situation." We decline to do so. S4 noted on her copy of the potential transfer list that Employee 3 was a single father. Complainant, who had an opportunity to cross examine S2 and S3 as well as S4, failed to adduce any evidence regarding the extent to which the Agency transferred - or did not transfer - single mothers and married fathers. Given that Complainant had an opportunity to seek such evidence, we decline to take an adverse inference that men with child-care responsibilities received more favorable treatment than women with child-care responsibilities received.
Although we agree with the AJ's denial of an adverse inference, we nonetheless find that a sanction is appropriate in this case. Agencies have a duty to maintain pertinent evidence once a complainant has initiated the EEO process. See Ponce v. Agency for Int'l Dev., EEOC Appeal No. 0120131173 (June 24, 2013) (29 C.F.R. � 1602.14 "requires that once the complaint process is initiated, the agency is required to retain personnel records until a final disposition of the complaint"); Cosentine v. Dep't of Homeland Sec., EEOC Appeal No. 07A40114 (Aug. 9, 2006) (same). Complainant contacted an EEO Counselor on May 2, 2007, and the Agency should have preserved all documentation relevant to Complainant's complaint. Although the record in this case does not indicate that the Agency acted in bad faith, the Commission's regulations do not require a finding of willfulness or bad faith as a prerequisite to the issuance of a sanction. Cosentine v. Dep't of Homeland Sec. Because the Agency failed to maintain S2's and S3's copies of the potential-transfer list and any notes that they may have written, we find it appropriate to sanction the Agency by not considering the testimony of S2 and S3 regarding the meeting at which they and S4 discussed the selection of transferees. This sanction, which provides an equitable remedy for Complainant's inability to review the missing documents, should deter the Agency from destroying documents in the future.
Transfer
To prevail in a disparate treatment claim such as this, 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 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 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
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 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). An individual can engage in activity protected under Title VII by opposing a practice made unlawful by Title VII or by filing a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. � 2000(e)-3(a).
We assume, for purposes of analysis and without so finding, that Complainant has established prima facie cases of discrimination based on race, sex, national origin, and reprisal. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its action and that Complainant has not shown that the articulated reasons are pretextual.
The evidence establishes that the Agency wanted to transfer SSAs from TD to CTD to support the Agency's counterterrorism mission and that S2, S3, and S4 met to discuss whom to transfer. S4 testified that they considered employees who had been at TD for four or four-and-one-half years or longer and who had good work ethics. She also testified that they wanted to effectuate the transfers without obstructing TD's ability to carry out its responsibilities. S1 testified that S3 told him that the selection criteria were the amount of time the employees had been at TD and whether the employees had sought career advancement.
Complainant has not shown these reasons to be a pretext for discrimination. Although Complainant asserts that Agency officials made inconsistent statements regarding the decision to transfer her, she has not shown that the alleged inconsistencies were evidence of pretext. For example, Complainant asserts that officials disagreed about whether four years or four and one-half years was the minimum time that a transferee needed to be at TD, but she has not shown that the alleged difference was a pretext for discrimination. The record establishes that everyone on the potential-transfer list had at least four years of experience at TD and that Complainant was not the only listed individual with fewer than four and one-half years of experience. Moreover, one of the transferred employees, an Asian male, had less time at TD than Complainant had. Similarly, alleged inconsistencies about the number of transferees that the Assistant Deputy Director requested or whether S2 consulted S1 do not establish that the Agency's reasons for transferring Complainant were pretextual. Having considered all of Complainant's assertions about Agency officials' alleged inconsistent and conflicting statements, we cannot say that the Agency's articulated reasons for transferring Complainant are so unworthy of credence as to demonstrate pretext.
Further, Complainant has not shown that discriminatory reasons motivated the Agency. The record establishes that the Agency transferred men, employees of different races, and employees who had not engaged in protected EEO activity. Although it appears that none of the employees who were not transferred had engaged in protected activity, the evidence does not establish that the Agency transferred Complainant in reprisal for her prior EEO complaints. In this case, the temporal proximity between the time that S2 learned of Complainant's protected activity and the time of Complainant's transfer is insufficient to establish that retaliatory animus motivated the transfer. The evidence establishes that, to the extent that S2 disliked Complainant, he did so for reasons unrelated to Complainant's protected activity. Complainant testified that she experienced "some challenges" with S2 regarding NAU "retrainers" and her request to attend a conference, and S1 believed that S2 did not like Complainant's tendency to be outspoken and to put S2 on the spot. That testimony indicates that personality differences, rather than retaliatory or discriminatory animus, shaped S2's opinion of Complainant. Moreover, the potential-transfer list that S3 prepared establishes that S3 supported Complainant's transfer before his meeting with S2 and S4. There is no evidence that S3 was aware of Complainant's protected activity.
S4 testified that no one at the meeting discussed employees' races, genders, national origins, or protected activity. The AJ found S4 to be a credible witness, and we see no reason to question the AJ's credibility finding. Complainant's argument that the AJ should not have relied on S4's testimony because S4 was not in Complainant's chain of command is unpersuasive. S4 participated in the meeting where she, S2, and S3 discussed the selection of transferees, and she credibly testified regarding the content of the meeting.
In addition, in the absence of evidence concerning the extent to which the Agency transferred or declined to transfer single mothers and married fathers, we cannot say that S4's notation regarding Employee 3's status as a single father is evidence of sex discrimination. The evidence indicates that the Agency did not transfer Employee 3 because of his participation in an overseas survival awareness program rather than because of his sex.
We find that substantial evidence of record supports the AJ's conclusions. Accordingly, we find no basis to disturb the AJ's determination that Complainant did not establish that she was discriminated against as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order, which implemented the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
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Date
1 Although the Commission considers the term "Hispanic" to denote a national origin rather than a race, see Iftikar-Khan v. U.S. Postal Serv., EEOC Appeal No. 07A40137 (Dec. 15, 2005) at n.5, the legal analyses for race claims and national origin claims are essentially the same.
2 S3 testified that, with his approval, someone signed the forms on his behalf.
3 Complainant subsequently received a promotion to a GS-15 Unit Chief position. She served as a CTD Unit Chief from January 2008 until July 2008, when she voluntarily transferred to a GS-13 position at the Agency's Houston, Texas, office.
4 Agency Exhibit 4, introduced at the hearing on Complainant's complaint, identified five of the transferees as White males and three as males of unknown race. Complainant testified that two of the latter three males were White, and S1 testified that the third male was Asian.
5 Agency Exhibit 3, a chart listing the SSAs transferred from TD to CTD, indicated that Employee 1 was promoted to a CTD Unit Chief position prior to the effective date of the transfer. According to the chart, Employee 2 was still in CTD at the time the chart was composed.
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0120123333
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120123333