Mark E. Chernak, Complainant,v.Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionAug 10, 2007
0120072814 (E.E.O.C. Aug. 10, 2007)

0120072814

08-10-2007

Mark E. Chernak, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.


Mark E. Chernak,

Complainant,

v.

Henry M. Paulson, Jr.,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 0120072814

Hearing No. 410-2007-00065X-MDL

Agency No. EEODFS-06-0065-F

DECISION

Complainant filed an appeal from the agency's April 30, 2007, final order

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. For the

following reasons, the Commission AFFIRMS the agency's final order.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked as

a Supervisory Contact Representative, GS-962-11, at the agency's Internal

Revenue Service, Wage and Investment Division facility in Doraville,

Georgia. On May 19, 2006, complainant filed an EEO complaint alleging

that he was discriminated against on the bases of race (Caucasian), sex

(male), color (white), and reprisal for prior protected EEO activity

under Title VII of the Civil Rights Act of 1964 when:

1. In March 2006, complainant did not make the best qualified

(BQ) list for the position of Supervisory Tax Examining Technician,

IR-0592-8, advertised under the Agency's Vacancy Announcement Number

41-82-C01606ME;

2. In March 2006, complainant did make the best qualified (BQ) list

for the position of Supervisory Tax Examining Technician, lR-0592-8,

advertised under the Agency's Vacancy Announcement Number 41-82-C00706JR.

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). Complainant requested

a hearing. The AJ held a hearing on March 28, 2007 and issued a decision

on April 11, 2007. The agency subsequently issued a final order adopting

the AJ's finding that complainant failed to prove that he was subjected

to discrimination as alleged.

In her decision, the AJ found that complainant established a prima

facie case of race, sex and color discrimination, but did not establish

a prima facie case of discrimination based on reprisal. The AJ further

found that the agency articulated a legitimate, non-discriminatory reason

for its failure to include him on either certificate of best qualified

candidates for the subject positions, and that complainant did not show

the agency's reasons were a pretext to mask unlawful discrimination.

On appeal, complainant argues that his applications for the subject

positions clearly state that he has extensive experience in both

compliance and workload delivery for which he was not given appropriate

credit by the rating official. Complainant also argues that he

demonstrated that the reprisal occurred in the same managerial group

where his wife works. Complainant was known to have provided evidence

in his wife's EEO case and therefore agency management was aware of his

participation and retaliated against him by ensuring that he was not

considered for either position.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or

on the tone of voice of a witness will be accepted unless documents or

other objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

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).

We concur with the AJ that complainant did not show that the agency's

reasons for its actions were pretext. Specifically, the AJ noted that

the agency's rating official explained that complainant did not properly

address the information requested by the vacancy announcements in his

applications. The applications called for a narrative through which

the applicants explain how their experience satisfies the technical

competencies required. Complainant did not do this, but instead

explained what the competencies were and failed to articulate how

he personally satisfied them. We find no reason to disturb the AJ's

findings on appeal.

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

August 10, 2007

__________________

Date

2

0120072814

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120072814