John S. Muhlestein, Complainant,v.Samuel W. Bodman, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionSep 18, 2007
0120062809 (E.E.O.C. Sep. 18, 2007)

0120062809

09-18-2007

John S. Muhlestein, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy, Agency.


John S. Muhlestein,

Complainant,

v.

Samuel W. Bodman,

Secretary,

Department of Energy,

Agency.

Appeal No. 01200628091

Agency No. 04-5132-HQ-SC

DECISION

Complainant filed an appeal from the agency's January 25, 2006 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

worked as a former Director at the agency's Stanford Site Office (SSO)

in Menlo Park, California. On September 10, 2004, complainant filed an

EEO complaint alleging that he was discriminated against on the bases

of race (White), sex (male), and age (61) when:

1. On July 22, 2004, complainant learned that was not selected for

the position of Site Office Manager at the Stanford or the Berkeley Site

Office under Vacancy Announcement Number ETRSC-04-01-429.2

In January 2005, complainant amended his complaint to include the

following claim based on reprisal for prior protected EEO activity:

2. On January 5, 2005, complainant was relieved of his duties as

Site Office Manager and detailed to unspecified duties for sixty days.

At the conclusion of the investigation, 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). Complainant elected

to receive an agency final decision instead of a hearing. In accordance

with complainant's request, the agency issued a final decision pursuant

to 29 C.F.R. � 1614.110(b) concluding that complainant failed to prove

that he was subjected to discrimination as alleged.

In its final decision, the agency found that complainant's qualifications

were not superior to those possessed by the two selectees, S1 and S2.

Specifically, complainant did not have good contract management

experience since that function was recently added to the SSO position,

whereas contract management was previously performed for the SSO by the

Oakland System office where it appeared that S1 was responsible for the

procurement process. Both S1 and S2 were noted by the selecting official

as possessing strong communication skills. S2's application showed that

she had extensive management, problem solving and leadership experience.

Thus, the agency found that the selecting official's assessment of the

selectees's abilities and complainant's limitations were the reasons

for complainant's non-selection for the Site Office Manager position at

either location.

With respect to complainant's reprisal claim, the agency found that

three agency officials, complainant's immediate supervisor (M1), his

second level supervisor (M2), and another manager (M3), who assumed

complainant's duties on January 5, 2005 at the SSO, all described

legitimate, non-discriminatory reasons for the agency's decision to assign

complainant to a temporary detail to unspecified duties. The agency

noted that all three officials stated that complainant was relieved of

his duties at the SSO due to the findings of a Type A investigation which

identified safety issues that effective leadership could have prevented.

The agency stated that the results of this investigation and another

investigation involving harassment of complainant's subordinates, acted

together to cloud the selection process for the Site Office Manager

positions which occurred during the same time frame. The agency found

that valid reasons supported the agency's selection decision as well as

the agency's decision to relieve complainant of his duties by detailing

him to unspecified duties for sixty days.

On appeal, complainant states that none of his previous performance

appraisals describe any lack of leadership or weakness in his skill sets

that prevented the agency from promoting him to the Site Office Manager

position when it was upgraded to the senior executive service level.

On the contrary, complainant states that his record with the agency is

excellent and that he is more qualified that the selectees chosen for

the Berkeley and Stanford offices. Complainant states that, contrary

to what the agency found in its decision, M1 told him that he was

not selected because M1 thought complainant's new house and doctoral

thesis was distracting him and that the agency needed to hire "new blood"

(meaning younger managers). Complainant further states that he was told

by M1 that he was being detailed after the results of an "HR" matter and

that M1 never mentioned the Type A safety investigation. Accordingly,

complainant states that the agency's reasons are a pretext and that sex,

race and age discrimination are the real reason he was not selected for

the Site Office Manger positions.

Further, complainant argues that it was after M1 learned that complainant

had filed a complaint that M1 retaliated against him by relieving him

of his duties at the SSO. While the agency claims his January 5, 2005

detail was not an adverse employment action, complainant states that

he has been humiliated and his reputation within the agency has been

degraded and disgraced by the agency's actions.

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").

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).

In the instant case, with respect to the Site Office Manager selections,

we find that complainant has not shown that his knowledge, skills and

experience were plainly superior to those possessed by the selectees.

S1's experience with contracting procedures and procurement is evident

in her application materials, as is S2's experience in communications

and management.

With respect to claim (2), we find that complainant has not shown that

the agency's articulated reasons for its actions was pretext, namely, the

agency's belief that complainant's leadership in the handling of a recent

harassment complaint was deficient. On the contrary, while complainant

may not have been fully or accurately informed by his supervisor of

the agency's motivation for placing him in a detail in January 2005,

complainant has not shown that his supervisor's reasons were a pretext

to mask unlawful discrimination.

We therefore AFFIRM the agency's final decision, finding no

discrimination.

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

September 18, 2007

__________________

Date

1 Due to a new data system, the Commission has redesignated the instant

case with the above referenced appeal number.

2 Although the agency did not appoint the selected candidates until later,

complainant was informed by the selecting official that he would not be

selected in late July 2004.

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0120062809

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120062809