0120064959
05-15-2008
Dennis E. Brooks, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Dennis E. Brooks,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120064959
Agency No. ARHQOSA03MAY0093
DECISION
On August 27, 2006, complainant filed an appeal from the agency's July
20, 2006, final decision concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a paralegal specialist at the agency's Legal Services Agency in the
Office of the Judge Advocate in Arlington, Virginia. On August 12, 2003,
complainant filed an EEO complaint alleging that he was discriminated
against on the basis of age (54 years old) and in reprisal for prior
protected EEO activity (arising under an EEO statute that was unspecified
in the record) when:
1. On or about May 2, 2003, complainant's Senior Rater, the Colonel,
issued complainant a Senior System Civilian Evaluation Report for the
period of November 1, 2001 through October 31, 2002, with an overall
performance rating of Level 4 (Fair). Complainant contends that the
rating should be at least Level 3 (Successful); and
2. In February 2002, the Colonel failed to take any action regarding
complainant's request that the Colonel review his position description
and assigned duties. Complainant did not believe that his position as
a GS-0950-09 Paralegal Specialist was accurately classified.
In a letter dated November 19, 2003, the agency accepted claim 1 for
investigation and dismissed claim 2 on the grounds that claim 2 was
initiated by untimely EEO counselor contact. At the conclusion of
the investigation of claim 1, complainant was provided with a copy
of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). When complainant did
not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision on claim 1, pursuant
to 29 C.F.R. � 1614.110(b). The decision concluded that complainant
failed to prove that he was subjected to discrimination as alleged.
Specifically, the agency found that complainant failed to establish
prima facie cases of reprisal or age discrimination. The agency further
determined that complainant failed to prove that the its articulated
non-discriminatory reasons for its actions were pretext for unlawful
discrimination or reprisal. Complainant did not submit a statement on
appeal, and the agency requests that we affirm its final decision.
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 EEOC Management
Directive 110, 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").
Claim 1
In a claim such as the instant one which alleges disparate treatment,
and where there is an absence of direct evidence of such discrimination,
the allocation of burdens and order of presentation of proof is a
three-step process. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142 (2000) (applying the analytical framework described in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA
disparate treatment claim). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
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 Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) he engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he 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).
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). Once the agency has
articulated such a reason, the question becomes whether the proffered
explanation was the true reason for the agency's action, or merely
a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509
U.S. 502, 511 (1993). Although the burden of production, in other words,
"going forward," may shift, the burden of persuasion, by a preponderance
of the evidence, remains at all times on complainant. Burdine, 450
U.S. at 256.
In this case, complainant failed to establish that he was treated less
favorably than a significantly younger similarly situated employee.
Complainant, a civilian employee, cited a staff sergeant as a comparator,
but this employee is an active duty soldier who has a different
supervisor than complainant. We conclude that complainant failed to
provide any evidence from which an inference of age discrimination
could be established. Therefore, we find that the agency properly
found that complainant failed to establish a prima facie case of age
discrimination.
With respect to reprisal, complainant established that he engaged
in prior activity when he filed EEO complaints in July 2002 and
September 2002 regarding matters that occurred while he was employed in
Germany. Those complaints were closed in August 2002 and November 2002.
Complainant alleges that the Colonel and supervisor who gave him a "fair"
rating were aware of his prior EEO activity after he inquired about the
status of his previous EEO complaints. However, we are not persuaded
that complainant has established the requisite nexus between his previous
EEO activity and the instant matter, which involves management officials
who were not involved in his prior EEO activity. Thus, we find that
the agency properly found that complainant failed to establish a prima
facie case of reprisal.
Moreover, we find that the agency articulated legitimate,
non-discriminatory reasons for its actions. Specifically, the agency
stated that complainant received a "fair" evaluation rating because
complainant failed to provide accurate and timely data regarding the
status of Public Financial Disclosure Reports (SF-278). Complainant
failed to provide any persuasive evidence that the agency's articulated
reason is a pretext for unlawful discrimination or reprisal. Consequently,
we find that the agency properly found no discrimination with respect
to claim 1.
Claim 2
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) require that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Claim 2 concerns matters that occurred in February 2002. The record
reveals that complainant did not initiate EEO counselor contact until May
12, 2003, well beyond the 45-day time limit. Complainant has not made
any argument that would warrant a waiver or extension of the applicable
time limits. Consequently, we find that the agency properly dismissed
claim 2 on the basis of untimely counselor contact.
CONCLUSION
Accordingly, based on a thorough review of the record, the Commission
affirms the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
__May 15, 2008________________
Date
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0120064959
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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