0120112238
04-18-2012
Darryl A. Hines, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.
Darryl A. Hines,
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0120112238
Hearing No. 410-2010-0279X
Agency No. ED-2009-41-00
DECISION
Complainant filed an appeal from the Agency’s February 1, 2011 Final
Decision concerning his 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s Final Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was
an applicant for employment at the Agency’s Office of Civil Rights,
Region 4, in Atlanta, Georgia. Complainant filed an EEO complaint, dated
September 15, 2009, alleging that the Agency discriminated against him
on the bases of race (African-American), color (black), age (over 40),
and in reprisal for prior protected EEO activity when:
On October 2, 2008, Complainant was not selected for the position
of Chief Attorney for Civil Rights, GS-05-14/15, under vacancy
announcement number OCR-R4-2008-01.
At the conclusion of the investigation in March 2010, the Agency
provided Complainant with a copy of the report of investigation and
notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant requested a hearing and engaged in discovery
with the Agency. By order dated December 3, 2010, the AJ dismissed
Complainant’s request for a hearing and returned the complaint to
the Agency for a final decision pursuant to Complainant’s request.
The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
In its Decision, the Agency found that Complainant failed to establish
a prima facie case of race or age discrimination for the reason that the
selectee, SE, is in the same protected groups as Complainant. Further,
the Agency found that Complainant did not establish a prima facie case
of reprisal discrimination because Complainant did not show that the
selecting officials were aware of Complainant’s prior EEO activity.
The Agency considered Complainant’s claim that an identified member
of the selection panel had provided an affidavit in Complainant’s
prior EEO case. The Agency confirmed that SO1, a Regional Director for
the Agency, was a member of the panel that interviewed the candidates
for the position, SO1 stated that he played no role in the initial
portion of the selection process in which candidates were selected
for interviews. Complainant was not selected for an interview and SO1
further stated that he had no influence over the panel members that
selected candidates for interviews. The Agency observed that none of
the other panel members had any knowledge of Complainant’s prior EEO
activity, and accordingly, Complainant failed to present a prima facie
case of reprisal discrimination.
Assuming Complainant had established a prima facie case of discrimination,
the Agency found that the Agency officials (SO2 and SO3) whose function
it was to select candidates for the interview process, stated that
Complainant’s application materials did not indicate that Complainant
had recent or strong experience supervising attorneys. The Agency noted
that SE had recent civil rights law experience and experience managing
other attorneys. The Agency found that in his rebuttal to the Agency’s
stated reasons for its selection, Complainant presented no evidence
that his race, color, age, or prior EEO activity played any role in the
panel’s decision not to refer Complainant’s name for an interview.
The Decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
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). She must
generally 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). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, Complainant must prove,
by a preponderance of the evidence, that the Agency's explanation is a
pretext for discrimination. 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); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
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. v. Green, 411 U.S. 792, 802 (1973)). 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. Department of Veterans Affairs, EEOC Request No. 05960473
(November 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. Department of the Air Force, EEOC Appeal No. 01A00340 (September
25, 2000).
As a preliminary matter, we note that Complainant’s motion to amend
his complaint to include additional non-selection actions in 2007 and
2008 was considered by the AJ at the time Complainant’s complaint was
pending before the AJ. The record reveals that during a pre-hearing
conference on November 17, 2010, the AJ denied the Agency’s motion
to dismiss the additional non-selection claims. Complainant stated that
he had applied for other attorney positions with the Agency and that he
had never received any notice that he had not been selected.
In response, the Agency claimed that a thorough search had been undertaken
to discover any other applications from Complainant for employment with
the Agency that had been received during 2007 to 2008 in response to the
Agency’s vacancy announcements for attorneys. The Agency maintained
that it had failed to discover any other applications from Complainant.
Nevertheless, the AJ permitted Complainant to amend his complaint to
include a claim that he was not selected for other general attorney
positions with the Agency between 2007 and 2008. Hr’g Tr. November
17, 2010, at 66. After a careful review of the record, we find that
Complainant failed to present adequate evidence that he applied for any
specific positions with the Agency between 2007 and 2008 for which he was
not selected, other than the position at issue in the instant complaint.
We therefore dismiss Complainant’s amended 2007 – 2008 non-selection
claim(s), pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state
a claim.
In the instant case, we find the Agency’s Decision is supported by
the record. We find, as did the Agency, that Complainant is in the
same protected race and age groups as the selectee. We further find no
persuasive evidence that any of the officials (SO2 and SO3) tasked with
selecting candidates for interviews from among the qualified applicants
were aware of Complainant’s prior EEO activity. Moreover, we find no
evidence that either official (SO2 or SO3) was aware of Complainant’s
color (black), compared to that of the selectee. Accordingly, we find
that Complainant failed to establish that his race, color, age, or prior
EEO activity motivated the Agency’s decision not to refer him for an
interview and ultimately, to not select him for employment.
CONCLUSION
We AFFIRM the Agency’s Final Decision.
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
April 18, 2012
__________________
Date
2
0120112238
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112238