01986561
08-06-1999
Millard Graham, Appellant, v. Daniel L. Glickman, Secretary, Department of Agriculture, Agency.
Millard Graham v. Department of Agriculture
01986561
August 6, 1999
Millard Graham, )
Appellant, ) Appeal No. 01986561
v. ) Agency Nos. 930319
Daniel L. Glickman, ) 931018
Secretary, )
Department of Agriculture, )
Agency. )
DECISION
Appellant timely initiated an appeal to this Commission from a final
agency decision ("FAD") concerning his complaints of discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The appeal is accepted pursuant to the provisions
of EEOC Order No. 960.001. In his complaints, appellant alleged that he
was discriminated against based on reprisal for prior EEO activity when
(a) the agency denied his request to waive the time-in-grade requirements
for two positions for which he had submitted applications and (b) the
agency kept an advertisement for a third position open for one week, which
appellant contended resulted in his failure to submit an application.
At the time in question, appellant was employed by the agency as a
Biological (Wildlife) Technician, GS-7, in the Colorado State Region.
In September 1992, appellant applied for the position of Biologist
(Wildlife), State Director, GS-12, in the Illinois Office. Along with his
application, appellant submitted a request that the agency grant him a
waiver of the time-in-grade requirements. In October 1992, appellant
applied for the position of Supervisory Biologist (Wildlife), State
Director, GS-12, in the Idaho Office and again submitted a request for
a waiver of the time-in-grade requirements. By letter dated November 9,
1992, a Deputy Administrator informed appellant that his waiver requests
were denied.
A Vacancy Announcement ("VA") for the position of Supervisory Biologist
(Wildlife), GS-9, for an Arizona office was issued with an opening date
of August 9, 1993, and a closing date of August 16, 1993. Appellant
contended that his office in Colorado did not receive the VA until three
(3) days after the closing date and, therefore, he was unable to submit
an application for the position.
Appellant timely sought EEO counseling, and his instant complaints
were accepted and investigated by the agency. After appellant failed
to request a hearing before an EEOC Administrative Judge, the agency
issued its instant FAD, finding no reprisal.
In the FAD, the agency found that appellant could not establish a
prima facie case of reprisal with respect to any of his allegations.
The agency found that the requests for waiver of the time-in-grade
requirement were "unprecedented" and that there was no showing that any
other employee had been treated more favorably than appellant or that
there was any causal connection between appellant's EEO activity and
the denial. In this regard, the agency noted that an applicant with no
history of EEO activity was also found ineligible due to failure to
satisfy the time-in-grade requirement. While the official who signed
the letter notifying appellant of the denial of his waiver requests was
aware of appellant's prior EEO activity, the agency found no evidence that
the personnel staff who advised the official regarding the regulations
governing waiver of time-in-grade requirements were aware of appellant's
prior EEO activity and, thus, could not be influenced by a retaliatory
animus. (The record reflects that agency regulations do permit a waiver
of time-in-grade requirements under certain circumstances, such as when
the agency finds that it is a hardship to recruit a sufficient number of
applicants meeting the requirement, when an employee's current position
is upgraded, or when an administrative error prevented the employee
from satisfying the requirement. However, appellant's request did not
meet such criteria.) Similarly, the agency found that all employees
had been treated in an identical manner with respect to the issuance
of the VA, in that all were limited to a one-week period in which to
respond. Further, all employees in appellant's office were similarly
disadvantaged if the VA was in fact untimely received by that office.
The agency noted that the official who set the opening and closing dates
for the VA was located in a different state and had averred that he had
never heard of appellant prior to the filing of his instant complaint.
Appellant did not submit comments on appeal. In its comments, the agency
contends that its FAD properly found no reprisal.
As this case alleges employment discrimination based reprisal, it is
the burden of the complainant initially to establish that there is
some substance to his or her allegation. In order to accomplish this,
the complainant must establish a prima facie case of discrimination.
McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). This means
that appellant must present a body of evidence such that, were it not
rebutted, the trier of fact could conclude that unlawful discrimination
did occur. In accordance with the burdens as set out in McDonnell
Douglas and Hochstadt v. Worcester Foundation for Experimental Biology,
Inc., 425 F. Supp. 318 (D. Mass.), aff'd 545 F.2d 222 (1st Cir. 1976),
appellant may establish a prima facie case of reprisal by showing that:
(1) he engaged in Title VII protected activity; (2) the agency was aware
of his protected activity; (3) subsequently, he was subjected to adverse
treatment by the agency; and, (4) there is a causal connection between
the protected activity and the adverse employment action.
Applying the analytical framework set forth above, the Commission finds
that appellant failed to establish a prima facie case of reprisal.
A prima facie case is not the equivalent of a finding of discrimination;
rather, it is simply proof of actions taken by the agency from which
retaliatory animus may be inferred, because experience has proven
that in the absence of any other explanation, it is more likely than
not that those actions were bottomed on impermissible considerations.
Furnco Construction Corp. v Waters, 438 U.S. 567 (1978). The elements for
establishing a prima facie case are not inflexible and must necessarily
vary with the factual circumstances and bases of discrimination alleged.
Nonetheless, appellant has failed to establish that any employee was
treated more favorably than he or otherwise establish facts which would
support the drawing of an inference of a causal connection between his
prior EEO activity and the actions of which he complains.
Consequently, after a careful review of the entire record, it is the
decision of the Commission to AFFIRM the FAD in this matter.
STATEMENT OF RIGHTS-ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
August 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations