01a40080
08-03-2005
Daniel S. Anderson, Complainant, v. Alberto R. Gonzales, Attorney General, Department of Justice, Agency.
Daniel S. Anderson v. Department of Justice
01A40080
August 3, 2005
.
Daniel S. Anderson,
Complainant,
v.
Alberto R. Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A40080
Agency No. D-01-3618
Hearing No.100-A2-8186X
DECISION
Complainant initiated contact with the agency's EEO Office by letter
dated August 24, 2000. Complainant was employed at the time of the
alleged discrimination as a Supervisory Special Agent, GS-1811-14 with
the agency's Drug Enforcement Administration. On January 26, 2001,
complainant filed a formal EEO complaint in which he claimed that the
agency discriminated against him on the bases of his race (Caucasian)
and in reprisal for his previous whistleblowing activity when he was not
selected for the position of Senior Inspector, GS-1811-15, advertised
under Vacancy Announcement Numbers CMB-00-343 and CMB-00-367. Complainant
applied for the Senior Inspector position on June 1, 2000, and he claimed
that the agency improperly canceled the first vacancy announcement.
According to complainant, he was the leading candidate under the first
vacancy announcement, but the official responsible for recommending a
candidate, the Chief Inspector (African-American), resented him because
he had engaged in whistleblowing activities that led to the removal of
an African-American employee. The record indicates that the second
vacancy announcement was issued on July 12, 2000 and a selection was
made on August 28, 2000.
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ), pursuant to complainant's request for
a hearing. Without holding a hearing, the AJ issued a decision ordering
Summary Judgment in favor of the agency and finding no race or reprisal
discrimination. The AJ found that complainant failed to set forth a
prima facie case of race discrimination because the person selected
for the Senior Inspector position was the same race as complainant.
The AJ further found that complainant failed to establish a prima facie
case of reprisal because allegations of whistleblowing fall under the
jurisdiction of the Office of Special Counsel (OSC).
On September 5, 2003, the agency issued a final order implementing the
AJ's decision. The agency determined that the first vacancy announcement
was not canceled due to discrimination. The agency stated that the Chief
Inspector canceled the first vacancy announcement so that he could choose
from a list of higher scoring candidates after the new annual Assessment
Center scores were released. The agency further stated that although
complainant made the best qualified list with a score of 82 for the
original vacancy, his score was the lowest on the best qualified list and
therefore it is unsupported speculation that he would have been selected.
On appeal, complainant contends that he was initially denied a
promotion due to the Chief Inspector's racial animus toward him and
thereafter denied promotion because of his OSC and EEO complaints.
Complainant argues that there is no other instance where an Inspector
position was readvertised when eligible individuals were available.
Complainant maintains that the Chief Inspector's assistant told him
that his career would suffer if he did not withdraw his complaints.
Complainant notes that the OSC issued a decision dated May 21, 2003,
finding that he was bypassed for promotion in 2000, 2001 and 2002 in
reprisal for his reports to the Office of Professional Responsibility
regarding a coworker and his testimony in a Merit Systems Protection
Board hearing in which the coworker's removal from the agency was upheld.
Complainant further notes that the OSC stated that there is also evidence
that complainant was not promoted because he complained about the Chief
Inspector to the Office of Professional Responsibility and filed EEO
and OSC complaints against the agency.
In response, the agency asserts that complainant failed to establish a
prima facie case of either race or reprisal discrimination. The agency
notes that the selectee is the same race as complainant and the sole
difference between them is that complainant was a whistleblower.
The agency maintains that any animus that the Chief Inspector had
toward complainant was due to his involvement in the case against
his coworker rather than his race. The agency states that the AJ was
correct in finding that the EEO forum was not the appropriate forum for
complainant's claim of retaliation for whistleblowing.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
It is evident based on the fact that the selectee was also Caucasian that
complainant's race was not the reason for the cancellation of the original
vacancy announcement and his nonselection under the subsequent vacancy
announcement. We are not persuaded by any of complainant's arguments
to the contrary. With regard to complainant's claim of reprisal, we
observe that prior to the instant complaint, complainant had no history
of EEO activity. Further, there is no evidence indicating that the Chief
Inspector was aware of complainant's memorandum to the agency's EEO Office
dated August 24, 2000, prior to the selection on August 28, 2000. We
acknowledge the OSC's decision finding that the Chief Inspector bypassed
complainant for promotions in 2000, 2001 and 2002 due to complainant's
whistleblowing activities. However, complainant's whistleblowing did not
pertain to any alleged discriminatory action on the part of the coworker.
Therefore, complainant's whistleblowing involvement in the removal of an
African-American coworker does not constitute protected EEO activity.
We find that the cancellation of the original vacancy announcement and
complainant's nonselection under the subsequent vacancy announcement
were not due to reprisal that is within the Commission's jurisdiction.
After a review of the record in its entirety, including the contentions
set forth by complainant on appeal and the agency's opposition thereto,
it is the decision of the Equal Employment Opportunity Commission
to AFFIRM the agency's final action finding no discrimination as a
preponderance of the record evidence does not establish that race or
reprisal 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
August 3, 2005
__________________
Date