Vincent C. Duncan, Complainant,v.Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionDec 15, 2011
0120100344 (E.E.O.C. Dec. 15, 2011)

0120100344

12-15-2011

Vincent C. Duncan, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.




Vincent C. Duncan,

Complainant,

v.

Tom Kilgore,

President and Chief Executive Officer,

Tennessee Valley Authority,

Agency.

Appeal No. 0120100344

Agency No. 04202009040

DECISION

On October 29, 2009, Complainant filed an appeal from the Agency’s

September 30, 2009, 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. The Commission accepts the appeal

pursuant to

29 C.F.R. § 1614.405(a). For the following reasons, the Commission

REVERSES the Agency’s final decision.

ISSUES PRESENTED

The issues presented are: (1) whether the Agency erred in failing to

accept and investigate Complainant’s retaliatory reassignment claim;

and (2) whether the Agency met its obligation to provide a legitimate,

nondiscriminatory reason for Complainant’s non-selection for a

Maintenance Supervisor position.

BACKGROUND

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

as a Maintenance Coordinator at the Agency’s Shawnee Fossil Plant in

Paducah, Kentucky. In May 2008, Complainant applied for the position of

Maintenance Supervisor, advertised under internal vacancy announcement

number 24017. The Maintenance Manager (SO1) and the Outage Manager

(SO2)1 were the management officials involved in the selection process.

The record reflects that the selection process consisted of three

stages and involved a position selection matrix. First, SO1 scored the

candidates on four weighted qualifications: (Q1) experience managing and

supervising maintenance employees in power plant maintenance activities;

(Q2) translation and integration of maintenance goals into work unit

activities; (Q3) leadership skills demonstrated on a leadership assessment

test; and (Q4) education. Second, SO1 and SO2 scored the candidates’

responses to nine weighted interview questions. Third, SO1 ranked the

candidates based on their combined qualification and interview scores.

A weight of 30 was applied to the qualification score and a weight of

70 was applied to the interview score.

Complainant met the minimum qualifications, received an interview,

but was not selected for the position. The position selection matrix

reflects that 12 candidates applied, 9 candidates received an interview,

2 candidates were offered the position but declined, and 2 candidates

(SE1 – Caucasian; SE2 – Caucasian) were selected. SE1 was ranked

third, SE2 was ranked fourth, and Complainant was ranked eighth.

On April 20, 2009, Complainant filed an EEO complaint alleging that the

Agency discriminated against him on the basis of race (African-American)

when, in February 2009, he was not selected for the Maintenance Supervisor

position. Complainant requested the following remedy: “I want to be

made whole, I want to be protected from any retaliation, and I want a

stop to the discriminatory use of temporary positions.”

In his May 8, 2009 affidavit, Complainant alleged that the Agency

discriminated against him on the basis of reprisal for prior protected

EEO activity under Title VII when, in April 2009, he was reassigned to a

different position. Specifically, Complainant stated, “[W]hen I filed

my complaint, I was moved out of my long time job to another position,

two days after they received my complaint.” On May 15, 2009, the

Agency amended Complainant’s non-selection claim to include the basis

of reprisal.2 The Agency, however, failed to amend Complainant’s

complaint to include the reassignment claim.

At the conclusion of the investigation, the Agency provided Complainant

with a copy of the report of investigation and notice of his right to

request a hearing before an EEOC Administrative Judge. In accordance with

Complainant’s request, the Agency issued a final decision pursuant to

29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed

to prove that the Agency subjected him to discrimination as alleged.

Regarding Complainant’s non-selection, the Agency initially found that

Complainant established a prima facie case of discrimination on the basis

of race, but not on the basis of reprisal. Next, the Agency summarized

the affidavits of SO1 and SO2 and found that those constituted legitimate,

nondiscriminatory reasons for management’s actions. Finally, the Agency

found that Complainant failed to show that management’s articulated

reasons were a pretext for unlawful discrimination.

CONTENTIONS ON APPEAL

On appeal, Complainant initially argued that the Commission should remand

his reassignment claim to the Agency for a supplemental investigation

because the ROI did not contain documentation regarding his April 6, 2009

transfer. In addition, Complainant argued that the Agency’s articulated

reason for his non-selection – his lower score on the position selection

matrix, which was designed to select the most qualified candidates –

was a pretext for race discrimination. Among other things, Complainant

asserted that SO1 “subjectively manipulated” the Q1 scores by not

objectively evaluating each candidate’s supervisory experience.

Complainant also noted that the Agency could not demonstrate the

quality of the selectees’ credentials because SE1’s resume failed

to include dates for the alleged work experience and the ROI did not

include SE2’s resume.

On January 8, 2010, the Agency submitted a brief in opposition to

Complainant’s appeal.

29 C.F.R. § 1614.403(f) provides that any statement or brief in

opposition to an appeal must be submitted to the Commission within 30

days of receipt of the brief supporting the appeal, or, if no brief

supporting the appeal is filed, within 60 days of receipt of the appeal.

Complainant filed his appeal on October 29, 2009 and submitted a brief on

November 27, 2009. The Agency stated that it received Complainant’s

appeal on November 3, 2009, but denied having received a copy of

Complainant’s brief. In either case, the Agency submitted its brief

more than 30 days after Complainant’s November 27, 2009 brief and more

than 60 days after receiving Complainant’s appeal on November 3, 2009.

Therefore, the Commission declines to consider the Agency’s January 8,

2010 brief, as it was untimely pursuant to 29 C.F.R. § 1614.403(f).

ANALYSIS AND FINDINGS

Standard of Review

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 Equal

Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO

MD-110), at Ch. 9, § VI.A. (Nov. 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”).

Retaliatory Reassignment Claim

A complainant may amend a complaint at any time prior to the conclusion

of the investigation to include issues or claims like or related to

those raised in the complaint.

29 C.F.R. § 1614.106(d). In deciding if a subsequent claim is “like

or related” to the original claim, a determination must be made as to

whether the later incident adds to or clarifies the original claim, and/or

could have reasonably been expected to grow out of the investigation

of the original claim. EEO MD-110, at Ch. 5, § III.B.2 (citing Scher

v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun

v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990)).

Complainant asserted in his May 8, 2009 affidavit that management

reassigned him in retaliation for filing the instant complaint. In this

case, we find that Complainant’s subsequent reassignment claim is

“like or related” to his original non-selection claim because it grew

out of the investigation into that claim. The Agency, however, failed

to properly amend Complainant’s complaint to include the reassignment

claim and failed to investigate that claim. We note that the record does

not contain any documentation regarding the reassignment, any affidavits

from the management official(s) responsible for the reassignment,3 or any

detailed testimony from Complainant about the reassignment. Accordingly,

we find that the Agency erred in not amending Complainant’s complaint

to include his subsequent, but related, reassignment claim.

Non-Selection Claim

To prevail in a disparate treatment claim absent direct evidence of

discrimination, a complainant must satisfy the three-part evidentiary

scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of

establishing a prima facie case by demonstrating that he was subjected

to an adverse employment action under circumstances that would support

an inference of discrimination. Furnco Constr. 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, 441 U.S. at 802

n.13. The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. 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 prove,

by a preponderance of the evidence, that the reason proffered by the

agency was a pretext for discrimination. Reeves v. Sanderson Plumbing

Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 519 (1993).

Complainant’s Prima Facie Case

In the non-selection context, Complainant may establish a prima facie

case of race discrimination by showing that: (1) he is a member of

a protected class; (2) he was qualified for the position; (3) he

was not selected for the position; and (4) he was accorded treatment

different from that given to persons otherwise similarly situated who

are members outside of his protected group. EEOC Enforcement Guidance on

O’Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002

(Sept. 18, 1996); Williams v. Dep’t of Educ., EEOC Request No. 05970561

(Aug. 6, 1998). Regarding his non-selection, the record reflects that

Complainant has shown that: (1) he is an African-American employee;

(2) he met the minimum qualifications for the position; (3) he was not

selected for the position; and (4) two Caucasian employees (SE1 and SE2)

were selected for the position.

Agency’s Legitimate, Nondiscriminatory Reason

Once a complainant has established a prima facie case, the burden then

shifts to the agency to articulate a legitimate, nondiscriminatory reason

for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at

253. The Supreme Court has described this burden as being met “if the

[agency’s] evidence raises a genuine issue of fact as to whether it

discriminated against the [complainant],” and that “[t]o accomplish

this, the [agency] must clearly set forth, through the introduction of

admissible evidence, the reasons for the [complainant’s] rejection.”

Id. at 254-55. Moreover, the agency must “frame the factual issue

with sufficient clarity so that the [complainant] will have a full

and fair opportunity to demonstrate pretext,” with the adequacy of

its evidence “evaluated by the extent to which it fulfill[ed] these

functions.” Id. at 255-56. The burden incumbent upon the agency

to respond to a complainant’s prima facie case with a legitimate,

nondiscriminatory reason for its actions is a burden of production,

not persuasion. Reeves, 530 U.S. at 142. While the agency’s burden of

production is not onerous, it must nevertheless provide a specific, clear,

and individualized explanation for the treatment accorded a complainant.

Lorenzo v. Dep’t of Def., EEOC Request No. 05950931 (Nov. 6, 1997).

An agency may fail to adequately meet its burden of production in

several ways. When a complainant challenges an agency’s ratings

or rankings of the complainant, an agency may fail to articulate a

legitimate, nondiscriminatory reason when it fails to provide specific

information to explain why agency officials assigned their respective

ratings to the complainant. See, e.g., Clemente v. Dep’t of Justice,

EEOC Appeal No. 0720080012 (Sept. 24, 2008) (finding that an agency failed

to meet its burden of production when it provided a mere description

of the selection process, generally stated that the selectees were more

qualified than complainant, and provided no clarification in the record

about the specific qualities that made the selectees better qualified

than complainant).

Upon review of the record, we find that the Agency failed to meet

its burden of articulating a legitimate, nondiscriminatory reason.

Specifically, we find that SO1 failed to provide a specific, clear,

and individualized explanation for Complainant’s non-selection.

SO1 averred that he used the position selection matrix to determine

who was best qualified for the position and described its role in the

selection process. ROI, Ex. 2, at 10-12. At no point in his affidavit,

however, did SO explain why he chose SE1 and SE2 over Complainant.

First, SO1 failed to provide an individualized explanation for

Complainant’s scores on the position selection matrix. When asked by

the EEO Investigator to compare Complainant’s qualifications with those

of SE1 and SE2, SO1 listed the numbers on the position selection matrix

but did not provide any additional information. Id. at 9-10, 12-13.

For example, the following testimony by SO1 provides no explanation

as to why Complainant received lower scores or what qualities, if any,

made SE2 better qualified for the position than Complainant:

The first criteria talked about experience managing, supervising

maintenance employees and power plant maintenance activities. It appears

that we gave a 2 for [SE2] and a 1 for [Complainant]. And, the criteria

was greater than ten years, they would score a 4; less than ten, but

greater than five is a 3. Between five and two was a two. And, so it

appears that [SE2] fell in the category of more than two and less than

five years and score out a 2 and [Complainant], less than two years,

scored out as a 1. The second question translates maintenance goals,

integrates them into work activities. [SE2] score a 3; [Complainant]

a 1. The leadership skills demonstrated on the leadership assessment,

both individuals scored out as a 2. And, education, [SE2] scored out

as a 1 and [Complainant] as a 3. Id. at 9-10.

Second, SO1’s statements about the candidates’ supervisory experience

are not sufficiently specific and clear to meet the Agency’s burden

of production. When asked by the EEO Investigator to respond to

Complainant’s statement that he had more seniority and experience than

the selectees, SO1 averred:

Well, as far as seniority, we don’t consider seniority … That’s not

necessarily, it is not a basis for selection in this particular position.

We go by -- the first criteria was experience and managing employees and

power plant maintenance activities … And, he was what we call a dual

rate foreman for, I want to say a year, a year and a half was really the

extent of his supervision over employees as compared to several of these

individuals and some of those that we did select and a couple that we

offered and declined have ten to twelve to fifteen years experience in

supervising employees … Seniority, he may have seniority over someone,

but he doesn’t have experience supervising employees, the years of

experience that many of the candidates did. Id. at 14-15.

It is unclear which specific individuals – SE1, SE2, or other candidates

not selected – SO1’s statements refer to when me mentions “several

of these individuals and some of those that we did not select and a

couple that we offered and declined.” In addition, the Q1 scores

on the position selection matrix indicate that SE1 and SE2 received

credit for having two to five years of supervisory experience, and that

only one candidate received credit for having more than ten years of

supervisory experience. ROI, at 137. Moreover, the applications of SE1

and SE2 provide us with no insight on how SO1 evaluated their supervisory

experience in comparison with Complainant’s supervisory experience.

For example, SE1’s application included a list of his Agency work

experience from “1992-Present,” but did not specify how long he had

worked in each position. ROI, at 162-64. Similarly, SE2’s application

did not list any work experience or any relevant dates. ROI, at 139-40.

Based on the above, we find that the Agency failed to articulate a

specific, clear, and individualized explanation for Complainant’s

non-selection, and consequently, Complainant was denied a fair opportunity

to demonstrate pretext. See Young v. Dep’t of the Treasury, EEOC

Request No. 05940517 (Oct. 13, 1995). Thus, the Agency failed to rebut

the inference of discrimination, which was created when Complainant

established a prima facie case of race discrimination, by articulating

a legitimate, nondiscriminatory reason for its actions. Therefore,

we find that Complainant was subjected to discrimination based on his

race when he was not selected for the Maintenance Supervisor position.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we REVERSE the

Agency’s final decision. The Agency will comply with the Order below.

ORDER

The Agency is ORDERED to take the following actions:

1. Retaliatory Reassignment Claim

a. The Agency shall conduct a supplemental investigation and compile

evidence regarding Complainant’s reprisal claim. The Agency shall

obtain all pertinent evidence needed to address Complainant’s reprisal

claim including, but not limited to, documents pertaining to the April

2009 reassignment and affidavits from Complainant and the responsible

management official(s).

b. The Agency shall complete its supplemental investigation and

issue a new final decision, together with the appropriate appeal rights,

within ninety (90) calendar days of the date this decision becomes final,

unless the matter is otherwise resolved prior to that time. A copy of

the Agency’s final decision must be sent to the Compliance Officer as

referenced below.

2. Non-Selection Claim

Unless otherwise indicated, the Agency is ordered to take the following

remedial action within sixty (60) days of the date this decision becomes

final:

a. The Agency shall offer Complainant the position of Maintenance

Supervisor, or a substantially equivalent position, at the Shawnee Fossil

Plant in Paducah, Kentucky, retroactive to the date of his non-selection,

in or about February 2009. Complainant shall have fifteen (15) days from

the date of the offer to accept or decline the position. If Complainant

should decline the Agency’s offer of a position, the date of his

rejection shall be the end date for any back pay due Complainant.

b. The Agency shall determine the appropriate amount of back pay,

with interest, and other benefits due Complainant, pursuant to 29

C.F.R. § 1614.501, no later than sixty (60) calendar days after the

date this decision becomes final. Complainant shall cooperate in the

Agency’s efforts to compute the amount of back pay and benefits due,

and shall provide all relevant information requested by the Agency.

If there is a dispute regarding the exact amount of back pay and/or

benefits, the Agency shall issue a check to Complainant for the

undisputed amount within sixty (60) calendar days of the date the Agency

determines the amount it believes to be due. Complainant may petition for

enforcement or clarification of the amount in dispute. The petition for

clarification or enforcement must be filed with the Compliance Officer,

at the address referenced in the statement entitled “Implementation

of the Commission’s Decision.”

c. The Agency shall conduct a supplemental investigation on

compensatory damages, including providing Complainant an opportunity to

submit evidence of pecuniary and non-pecuniary damages. For guidance on

what evidence is necessary to prove pecuniary and non-pecuniary damages,

the parties are directed to EEOC Enforcement Guidance: Compensatory and

Punitive Damages Available Under § 102 of the Civil Rights Act of 1991

(July 14, 1992) (available at eeoc.gov.) The Agency shall complete

the investigation and issue a final decision appealable to the EEOC

determining the appropriate amount of damages within 150 calendar days

after this decision becomes final.

d. The Agency shall provide eight (8) hours of EEO training to the

responsible management officials regarding their responsibilities under

EEO laws.

e. The Agency shall consider taking appropriate disciplinary action

against the responsible management officials. The Commission does not

consider training to be disciplinary action. The Agency shall report

its decision to the Compliance Officer. If the Agency decides to take

disciplinary action, it shall identify the action taken. If the Agency

decides not to take disciplinary action, it shall set forth the reason(s)

for its decision not to impose discipline. If any of the responsible

management officials have left the Agency’s employ, the Agency shall

furnish documentation of their departure date(s).

The Agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

POSTING ORDER (G0610)

The Agency is ordered to post at its Shawnee Fossil Plant in Paducah,

Kentucky copies of the attached notice. Copies of the notice, after

being signed by the Agency's duly authorized representative, shall

be posted by the Agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The Agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0610)

If Complainant has been represented by an attorney (as defined by 29

C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid

by the Agency. The attorney shall submit a verified statement of fees

to the Agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The Agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory.

The Agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC

20013. The Agency’s report must contain supporting documentation, and

the Agency must send a copy of all submissions to the Complainant. If the

Agency does not comply with the Commission’s order, the Complainant

may petition the Commission for enforcement of the order. 29 C.F.R. §�

�1614.503(a). The Complainant also has the right to file a civil action

to enforce compliance with the Commission’s order prior to or following

an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,

1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant

has the right to file a civil action on the underlying complaint in

accordance with the paragraph below entitled “Right to File a Civil

Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).

If the Complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. § 1614.409.

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 (R0610)

This is a decision requiring the Agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the Agency, or filed your appeal with the

Commission. 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.

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

___12/15/11_______________

Date

1 SO2 averred that he was not the selecting manager and was not at the

facility when the selections were made.

2 Complainant did not allege reprisal in connection with his

non-selection.

3 The record contains supplemental affidavits from SO1 and SO2.

When asked about Complainant’s reassignment, both averred that they

had no knowledge it. ROI, at Ex. 9-10.

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0120100344

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120100344