0120082026
09-04-2008
Diane L. Marshall, Complainant, v. William H. Turri, Acting Public Printer, United States Government Printing Office, Agency.
Diane L. Marshall,
Complainant,
v.
William H. Turri,
Acting Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 0120082026
Agency No. GPO 07-11
DECISION
Complainant filed a timely appeal from the February 14, 2008, final
agency decision (FAD) 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant worked
as a printing services specialist, GS-12, at the agency's headquarters
located in Washington, D.C.
On May 8, 2007, complainant filed an EEO complaint alleging that she was
discriminated against based on her race/color (African American/black),
sex (female), and age (54) and reprisal for prior EEO activity after
applying for the position of supervisory printing service specialist,
PG-1654-13, advertised under vacancy announcement number 07-088, but
was determined not to meet the experience requirements noted in the
announcement.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her 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 pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged.
The position in question was supervisory. Major duties included serving
as an expert on procurement and using a variety of contract types to
perform a full range of contracting and related activities. Required
qualifications included 52 weeks of specialized experience equivalent
to the next lower grade level writing, certifying, and administering
various types of contracts. (Report of Investigation, ROI, Exh. 15).
Complainant's eligibility for the position was determined based on her
application by a human resources specialist (African American, brown,
female, age 49). The human resources specialist stated that she was not
aware of complainant's EEO activity when she reviewed her application.
(ROI, Exh. 10, page 2). She explained that complainant's responses to
the knowledges, skills and abilities were weak, referring to work that
was not measurable, and that her application did not reflect that she had
broad enough technical knowledge to develop and mentor others through the
principles, processes, and procedures of contracting. She stated that she
was not contacted by anyone regarding her certification of the selectees.
(ROI, Exh. 10).
The human resources specialist asked for a second opinion by the acting
human capital manager, who concurred with assessment that complainant
did not possess the minimum specialized experience. (ROI, Exh. 11).
The acting human capital manager (Caucasian, white, female, age 27)
indicated that she was not aware of complainant's EEO activity. (ROI.,
Exh. 11, page 2). She stated that the specialized experience required
52 weeks of writing contracts, and complainant's application indicated
one position for 5 or 6 years not involving writing or administering
contracts. The acting human capital manager stated that if complainant
had such experience, it was not reflected in her application. (ROI,
Exh. 11).
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 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 (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 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). Complainant failed to establish a prima facie
case of reprisal discrimination because she did not show the officials
responsible for reviewing complainant's application and deciding whether
she was eligible were aware of her EEO activity.
The prima facie inquiry regarding race, color, sex and age discrimination
may be dispensed with in this case 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).
The agency explained that complainant was determined not to meet the
specialized experience requirements in the vacancy announcement based
on the content of her application. As pretext, complainant states
that she applied for a temporary version of the same position before,
and was determined to be qualified in November 2006. The agency conceded
this point. The acting human capital manager explained that complainant
should not have been previously deemed qualified, that the human capital
specialist who did so is no longer with the agency, and the agency has
discovered other related issues concerning the accuracy and quality
of his work. A review of complainant's application does not show that
the agency's assessment thereof was likely pretextual. Complainant has
failed to show that the agency's explanation for determining that she
was not eligible was pretext to mask discrimination.
The FAD is affirmed.
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
September 4, 2008
__________________
Date
2
0120082026
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082026