closed0120110831
02-21-2013
Mary K. Williams, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Mary K. Williams,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120110831
Hearing No. 410-2008-00374X
Agency No. FS-2008-00149
DECISION
Complainant filed an appeal from the Agency's final order dated November 23, 2010 concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Biological Technician at the Agency's facility in Athens, Georgia.
On March 7, 2008, Complainant filed a formal complaint. Therein, Complainant claimed that the Agency discriminated against her in reprisal for prior protected EEO activity.
By letter dated April 15, 2008, the Agency accepted Complainant's formal complaint for investigation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on March 13, 2009, and issued a decision on October 1, 2010.1
At the hearing, the AJ framed Complainant's claim as follows:
Whether the Agency discriminated against [Complainant] because of her prior EEO activity which during and after October 2007, management denied her request for a non-competitive promotion of Biological Technician GS 404-8. Hearing Transcript at 4.
The AJ found that Complainant did not establish a prima facie case of retaliation. Specifically, the AJ found that Complainant did not establish a nexus between her prior EEO activity and the denial of a promotion. Specifically, the AJ found that "nearly [eight] years, between the last instance of protected activity, her 1999 mediation, and the alleged discriminatory non-promotion occurring in 2007, is too lengthy to establish a causal connection, or nexus sufficient to support reprisal."
The AJ further found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ noted that Complainant's supervisor at the time testified that Complainant was not performing work at the GS-8 level. The AJ further found that Complainant did not establish that the Agency's articulated reason for its action was pretext for retaliation. Specifically, the AJ noted that the comparators that Complainant listed were not promoted by Complainant's supervisor.
On November 23, 2010, the Agency issued a final order adopting the AJ's finding of no discrimination.
The instant appeal followed.
On November 14, 2012, the Commission's Office of Federal Operations (OFO) issued to the Agency a Notice to Show Good Cause Why Sanctions Should Not Be Imposed (Notice). The Notice informed the Agency that OFO had not received the entire case file and requested that the Agency submit certain specified documents within a designated timeframe. The Agency timely responded to the Notice and submitted the requested documents.
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.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming arguendo that Complainant established a prima facie case of retaliation, we find that there is substantial evidence in the record to support the AJ's finding that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant's supervisor during the period in question testified that Complainant was not performing GS-8 level work and that he did not have a need for a GS-8 employee. Hearing Transcript (Hr'g Tr.) at 133-34.
Moreover, there is substantial evidence in the record to support the AJ's finding that Complainant did not establish, by a preponderance of evidence, that the Agency's articulated reason for its action was pretext for retaliation. Complainant cites to three comparators that she states have been promoted to higher grades. However, we find that these individuals are not similarly situated to Complainant. Specifically, Complainant's supervisor at the time testified that he was not responsible for the promotion of these individuals. Hr'g Tr. at 150. We also concur with the AJ's determination that the fact that Complainant's supervisor at the time created a position for her and promoted her to a GS-7 position in 2006, when the supervisor was already aware of Complainant's prior protected activity, does not support the finding that the supervisor had animus for Complainant based on her prior EEO activity.
Accordingly, we AFFIRM the Agency's final order implementing the AJ's decision finding no discrimination.
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
February 21, 2013
Date
1 The record reflects that the AJ that conducted the hearing subsequently left the Commission and another AJ issued the October 1, 2010 decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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