0120103328
06-08-2012
Charles J. George, Complainant, v. Karen G. Mills, Administrator, Small Business Administration, Agency.
Charles J. George,
Complainant,
v.
Karen G. Mills,
Administrator,
Small Business Administration,
Agency.
Appeal No. 0120103328
Agency No. 07-09-045
DECISION
On August 10, 2010, Complainant filed an appeal from the Agency's June 24, 2010 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e 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 Program Analyst, GS-0343-14, at the Agency's facility in Washington, DC. On August 18, 2009, Complainant filed an EEO complaint wherein he claimed that the Agency retaliated against him when:
1. On June 16, 2009, Complainant received notification that he was not selected for the position of Supervisory Economist, GS-0110-15.
2. On May 3, 2009, Complainant was placed on a 120-day detail to the Historically Underutilized Business Zone Program Office.
3. On or about March 19, 2009, Complainant's request to receive a special act cash award was denied.
4. On March 13, 2009, the Director for the Office of Government Contracting prematurely ended Complainant's temporary promotion to Assistant Director for the Office of Contract Assistance, which was originally supposed to end on March 28, 2009.
5. On July 2, 2009, Federal Protective Service officers were called to Complainant's office to question him about a discussion that he had with the Director on June 18, 2009.
6. On April 21, 2009, the Deputy Associate Administrator for the Office of Government Contracting and Business Development met with Complainant and falsely accused him of making disparaging remarks about programs, both inside and outside of the Agency.
7. On February 3, 2009, the Director instructed Complainant to identify and document deficiencies in the conduct and work performance of an employee who filed an EEO complaint against her.
8. On or about November 6, 2008, the Director unilaterally lowered Complainant's performance rating from "Outstanding" to "Exceeds Expectations" without any justification.
The Agency accepted claims (1-4) for investigation. In a partial dismissal dated September 2, 2009, the Agency dismissed claims (5-8) pursuant to 29 C.F.R. � 1614.107(a)(1) on the grounds of failure to state a claim. The Agency stated with regard to claim (5) that Complainant believed that Federal Protective Service officers were called and visited his office in response to his whistle-blowing about the Director's detail to a Senator's office being a potential violation of the Anti-Deficiency Act and anti-lobbying statutes. As to claim (6), the Agency noted that this matter also concerned a whistle-blowing disclosure as Complainant had raised the issue of the Deputy Associate Administrator having served as the Acting Associate Director or in his current position when the three most significant cases of fraud and mismanagement in the past twelve years occurred in the Office of Government Contracting and Business Development. The Agency dismissed claims (5-6) as it reasoned that Complainant did not mention or reference any conduct by management that could be construed as unlawful under the discrimination laws enforced by the Commission.
The Agency dismissed claims (7-8) because they occurred before there was any record of EEO activity on the part of Complainant. The Agency noted that the first instance of EEO activity was on February 3, 2009, when Complainant voiced opposition to the Director's retaliatory tactics towards the Field Director. The record indicates that claim (7) occurred that day before Complainant expressed disapproval. Claim (8) concerned the lowering of Complainant's performance rating at an earlier time, on or about November 6, 2008. On December 7, 2009, Complainant amended his formal complaint to include the following claims of reprisal:
9. On December 7, 2009, Complainant received a delayed and unfair "Exceeds Expectations" performance evaluation from a management official who was not in his direct chain of command during the Fiscal Year 2009 rating period.
10. On November 24, 2009, Complainant was denied the opportunity to serve as the Acting Director for the Office of Government Contracting.
11. On November 16, 2009, Complainant received verbal notification that he was not selected for the position of Program Manager (Deputy Director), GS-0340-15.
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 (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
FINAL AGENCY DECISION
The Agency determined that Complainant failed to prove that it subjected him to discrimination as alleged. Final Agency Decision at 23. With regard to claim (1), Complainant argued that in comparison with the selectee for the Supervisory Economist position, he had significantly longer Agency seniority and more relevant job and supervisory experience. Id. at 7. Complainant maintained that the selecting official (the aforementioned Director) engaged in reprisal against him because he refused to participate in her effort to harass and retaliate against a Field Director when Complainant was the acting Assistant Director in the Office of Contract Assistance. Id. Complainant stated that the selecting official resented the Field Director because of testimony he provided on behalf of two African American female employees in the Office of Contract Assistance who had filed EEO complaints against the Agency. Id. at 3. Complainant stated that the selecting official singled out the Field Director for heightened scrutiny and she requested Complainant treat the Field Director differently than the other Field Directors. Id. at 3-4.
According to Complainant, the selecting official went out of her way to criticize the Field Director's work although Complainant did not observe any significant deficiencies. Id. at 4. Complainant stated that the selecting official instructed him to counsel the Field Director about his unsatisfactory performance, which Complainant did. Id. Complainant stated that after his telephone conversation with the Field Director on February 4, 2009, he spoke to the selecting official and told her that she was treating the Field Director disparately and in an unwarranted and unjustified manner. Id. Complainant stated that the selecting official informed him that management was displeased with the Field Director and had asked her to address his deficiencies. Id. Complainant claimed that subsequent to his discussion with the selecting official, she became hostile and retaliatory toward him, resulting in the premature termination of his acting status and related temporary promotion. Id.
The Agency determined that Complainant set forth a prima facie case of reprisal. Id. at 7. The selecting official stated that she chose not to interview any of the candidates because she believed that one of the candidates was clearly the best person for the position. Id. at 7-8. She stated that the critical qualifications were experience with developing size standards and having very strong analytic and statistical abilities and background. Id. at 8. The selectee had been working in the Office of Size Standards for a year. Id. According to the selecting official, the selectee was deeply involved in projects critical to the vacancy that were coming to fruition. Id. She further stated that Complainant had no experience in size standards. Id. The Agency determined that it articulated legitimate, nondiscriminatory reasons for the selection. Id.
Complainant attempted to establish pretext by challenging the selecting official's evaluation of the qualifications of the selectee and himself. Id. at 9. Complainant disputed the selecting official's assertion that he lacked clinical experience in size standards. Id. Complainant further argued that the selecting official's decision was undermined by the Certificate of Eligibles for the position which ranked him first among three candidates. Id. Complainant noted that he was a whistleblower as he had submitted a letter dated July 21, 2009, to the Agency Administrator requesting an investigation of three officials, including the selecting official for their attempts to intimidate him. Id. at 8. The Agency determined that Complainant failed to establish that the Agency's explanation was pretextual. Id. at 9. The Agency concluded that the considered candidates were all competitive and the selectee was certainly qualified and competitive. Id. With regard to Complainant's reliance on the fact that he was a whistleblower, the Agency stated that Complainant's remedies for any reprisal against him for whistle-blowing activity are not within the EEO system. Id.
With respect to claim (2), Complainant was assigned to a 120-day detail to the Historically Underutilized Business Zone (HUBZone) Program Office. Id. Complainant claimed that the detail was in reprisal for opposing subjecting the Field Director to heightened scrutiny. Id. at 10. According to Complainant, he lacked experience in the HUBZone Program and thus the detail was setting him up for failure and marginalization. Id. The Agency determined that Complainant failed to establish a prima facie case of reprisal concerning the detail. Id. The Agency reasoned that Complainant failed to demonstrate that he was adversely affected by the detail. Id.
Assuming that Complainant had established a prima facie case of reprisal, the Agency determined that it articulated legitimate, nondiscriminatory reasons for the detail. Id. The Director stated that the detail afforded Complainant another developmental opportunity and that the office he was being assigned to had severe issues that needed to be addressed promptly. Id. The Director stated that she did not recall hearing any of Complainant's concerns about her treatment of the Field Director. Id. at 11. According to the Director, she considered the detail an opportunity for Complainant and another employee receiving the same assignment to broaden their experience and use their knowledge to help solve some challenges. Id. The Director informed Complainant and the other employee that they had been selected for the detail due to their analytical and business background. Id. at 9. According to the Deputy Associate Administrator, the details were prompted by three different Government Accountability Office reports that were very critical of the Agency's overseeing of the HUBZone Program. Id. at 11.
With respect to claim (3), Complainant had been temporarily promoted to the GS-15 level while serving a six week assignment as the Acting Assistant Director for the Office of Contract Assistance. Id. Complainant claimed that his performance was superior to that of another employee who served a 120-day detail in that acting position and received a special act award from the Director. Id. According to Complainant, the Acting Deputy Director for the Office of Government Contracting recommended him for a special act award. Id. However, the Director denied Complainant the cash award. Id. The Agency determined that Complainant established a prima facie case of reprisal. Id. at 12.
According to the Director, she decided not to issue Complainant a cash award because he was being compensated by a temporary promotion. Id. The Director distinguished the cash award issued to the comparison based on the fact that the comparison had acted in a high-level position without additional compensation for more than a month before her temporary promotion was effected. Id. The Agency noted that the comparison served the full length of the temporary promotion detail, 120 days or more, whereas Complainant served only thirty days before his detail was terminated. Id. at 13. The Agency determined that it articulated a legitimate, nondiscriminatory explanation for not issuing Complainant a special act award. Id. Complainant challenged the Director's position by arguing that management has discretion to assign employees to higher grade positions for short periods of time without additional compensation. Id. The Agency determined that no reprisal occurred. Id.
With regard to claim (4), Complainant stated that his temporary promotion to the Office of Contract Assistance was cut short by two weeks. Id. at 14. Complainant stated that he was unaware of any other temporary promotion in the Office of Government Contracting ending prematurely. Id. According to Complainant, the Director was motivated by a desire to exclude him from the selection process for the new Area 4 Director position because Complainant had made it clear that he favored a certain individual for that position. Id. Complainant claimed that another candidate was placed into the position prematurely so that she could serve on the panel and marginalize the candidacy of the individual that Complainant favored. Id. The Agency determined that Complainant failed to establish a prima facie case of reprisal. Id. The Agency reasoned that Complainant failed to prove causation as he did not assert any bias that the Director held against a candidate he favored and Complainant did not claim that his Director's actions were EEO-related against that candidate. Id.
Assuming arguendo that Complainant had established a prima facie case of reprisal, the Agency nonetheless denied that Complainant's temporary promotion detail was ended prematurely. Id. at 15. The Director maintained that the detail ended when it was no longer a requirement for a person to be acting in the temporary promotion. Id. She asserted that Complainant's detail to fill a vacancy was during the recruitment process for a permanent replacement. Id. According to the Director, once that vacancy was filled, it was appropriate to terminate Complainant's detail. Id. Further, the Director noted that the detail was for a period not to exceed 60 days and that she gave Complainant this opportunity for career development. Id. The Agency determined that it articulated legitimate, nondiscriminatory reasons for ending Complainant's detail. Id. Complainant attempted to establish pretext by arguing that the selectee should not have started her new position any earlier than two weeks after her selection. Id. at 16. Complainant stated that it is unusual based on the Agency's customs and practices for a selectee to report to her new position on the next business day. Id. The Agency determined that Complainant failed to demonstrate pretext as he did not show a comparable situation where a temporary promotion detail was allowed to run to completion after a permanent replacement had been selected. Id. The Agency focused on the fact that the underlying position had been vacant for an extended period of time. Id.
As to claim (9), Complainant maintained that his performance during the Fiscal Year 2009 merited a higher rating then Level 4, "Exceeds Expectations." Id. at 17. Complainant argued that his rating was untimely, incomplete, inaccurate and not objective. Id. Complainant claimed that those evaluating him were not in a position to directly assess his performance during the rating period. Id. According to Complainant, the official who rated him was biased against him because he revealed to senior Agency management his belief that the Director's detail to a Senator's office was a violation of the Anti-Deficiency Act and anti-lobbying statutes. Id. Complainant further claimed that he received no supervisory performance feedback during the rating period. Id. Complainant noted that his final rating was submitted nearly four weeks after the November 20, 2009 deadline. Id. Complainant argued that his first level supervisor for the first seven months of the rating period should have rated his performance and that his first level supervisor for the final five months should have been the rating official for that period of time. Id. In this fashion, Complainant stated the latter supervisor would not evaluate his performance based solely on his observations over the last 90 days of the rating period. Id. The Agency determined that Complainant failed to set forth a prima facie case of reprisal. Id. at 18.
The Agency stated that the length of time between Complainant's EEO activity and his performance rating was not close enough to raise an inference of reprisal. Id. Assuming arguendo that Complainant had established a prima facie case, the Agency noted that the official who rated Complainant stated that he considered the rating of "Exceeds Expectations" to be a very good rating. Id. This official indicated that he based his evaluation on written information provided by two other officials who had served as Complainant's immediate supervisors. Id. He further stated that he considered his own observations of Complainant's performance. Id. This official stated that he issued higher ratings for certain other employees but that was based on those individuals performing at an extraordinary level. Id. Additionally, this official stated that he was the correct person to evaluate Complainant and he denied that management intentionally delayed Complainant's performance evaluation. Id.
Complainant attempted to establish pretext by arguing that he and the other individual detailed to the HUBZone Program achieved higher site visits than expected. Id. at 20. Complainant further claimed that management failed to take into account the creativity and innovation that he displayed. Id. The Agency noted the other employee detailed to the HUBZone Program did not engage in protected EEO activity yet he also received a Level 4 rating. Id. The Agency stated that three managers in two different organizations rated Complainant at Level 4. Id. The Agency determined that Complainant failed to establish that the managers who evaluated his performance were motivated by retaliatory intent. Id.
With regard to claim (10), Complainant argued that he was denied the opportunity to serve as the Acting Director for the Office of Government Contracting. Id. Complainant claimed that the Acting Director for the Office of Government Contracting selected someone else to serve in an acting capacity for one day because he did not want to irritate the Director. Id. at 21. Complainant argued that he was more qualified than the person chosen and that although he did not request the assignment, it was clear to management that he sought career advancement. Id. The Agency determined that Complainant failed to establish a prima facie case of reprisal. Id. The Agency reasoned that not receiving the Acting assignment was not proximate in time to Complainant's EEO activity. Id. The Agency stated that Complainant presented no evidence other than his speculation to establish that the Acting Director made his decision based on his fear of the Director. Id. The Acting Director stated that he has no recollection regarding this issue but that he did not discriminate against Complainant. Id.
As for claim (11), Complainant was not selected for the position of Program Manager. Id. According to Complainant, he submitted his application for the position and it was acknowledged by the Office of Personnel Management. Id. at 22. The selectee was a candidate from outside the Agency. Id. Complainant was not interviewed and stated that he believed the selecting official (the aforementioned Deputy Associate Administrator) was biased against him because of his prior EEO activity and the fact that he was a whistleblower concerning this official's twelve years of management at the Agency. The selecting official acknowledged that he was aware of Complainant's prior EEO activity but stated that he did not consider Complainant for the position because he was not referred to him on the Roster of Eligibles provided by OPM. Id. According to the Human Resources Specialist, Complainant did not submit proper documentation to be considered for a merit promotion. Id. Complainant contended that he supported his application with the required material and information. Id.
The Agency determined that Complainant's application was complete and that his candidacy for the position was erroneously terminated at the initial screening stage. Id. The Agency responded by offering Complainant a one-time priority consideration for a position in the same job series, and grade and geographic location with the same promotion potential as the position which he had sought. Id. The Agency determined that no reprisal occurred given that there is no evidence to establish that the Human Resources oversight in evaluating the completeness of Complainant's application package was anything but inadvertent. Id. at 23.
CONTENTIONS ON APPEAL
On appeal, Complainant contends with regard to claim (1) that he had better qualifications than the selectee. Complainant states that he worked in collaboration with the previous Supervisory Economist of the Office of Size Standards, and in fact had clearly described his qualifications and background in size standards in his application for the position. As for claim (3), Complainant maintains that his accomplishments were similar to an individual who received a special act award, but the rewards for their efforts were different due to his EEO activity. Complainant challenges the Director's assertion that she was unaware of his refusal to follow her directions to engage in disparate treatment of the Field Director. Complainant argues that she is not credible given that she was the principal responding official in the Field Director's EEO complaint against her. Complainant notes that the Agency ignored the Director's history of having 63 EEO complaints filed by subordinates against her.
With regard to his performance evaluation rating, Complainant contends that his creativity and innovation in the HUBZone Program were not recognized by management. Complainant argues that his performance rating did not take into account how he proactively anticipated programmatic or administrative issues and showed an extraordinary degree of initiative in resolving problems during his five month detail. Complainant maintains that the official who rated his performance never observed his performance and had knowledge of his EEO activity and whistle-blowing activity, which rendered him incapable of objectively evaluating his performance. With respect to one of the dismissed claims, claim (5), Complainant claims that the Agency misused the Federal Protective Service as it attempted to intimidate and humiliate him when three armed guards sought to obtain a statement from him regarding the conversation that he had with the Director on June 18, 2009.
In response, the Agency asserts that Complainant failed to establish a prima facie case of reprisal since he has not shown that there is a nexus between his protected activity and the alleged adverse actions. With regard to claim (1), the Agency states that the selectee was chosen based on his experience in size standards. The Agency states that the selectee had been working in the Office of Size Standards for about a year and that Complainant had no experience in size standards. The Agency maintains that the selectee was qualified and competitive and Complainant's subjective belief about his qualifications does not demonstrate that its reason for selecting another candidate was a pretext for retaliation.
With respect to Complainant's detail to the HUBZone, the Agency asserts that Complainant failed to establish that he was rendered aggrieved as he did not suffer a tangible harm by the detail. Further, the Agency states that it had a legitimate business reason for the detail as three different GAO reports had been extremely critical of the HUBZone Program. According to the Agency, as a result of these reports, it instituted conduct site reviews of the certified HUBZone firms with Complainant and another GS-14 employee assigned to process the incoming site visit reports.
In terms of claim (3), the Agency notes that a comparison cited by Complainant served a 120-day detail to the same acting position for which Complainant received a temporary promotion. The Agency asserts that the comparison acted in a higher level position without additional compensation for more than a month before her temporary promotion was effected, in contrast to the Complainant, who was immediately promoted to the GS-15 level upon assuming the acting position. The Agency states that the comparison was compensated for her delayed promotion through a special award. The Agency states that the Director believed Complainant's performance did not warrant a cash award, and his temporary promotion constituted sufficient compensation. With regard to claim (4), the Agency asserts that Complainant failed to demonstrate a comparable situation where a temporary promotion detail was extended after a permanent replacement had been selected. The Agency maintains that there was no premature ending of the detail given that the temporary promotion concluded after a person had been hired to permanently fill that position and it was no longer necessary to have somebody in that Acting position.
As for Complainant's performance appraisal, the Agency asserts that the rating official considered Complainant's self-assessment when evaluating him. Also, the rating official considered written information provided by Complainant's two first level supervisors during the appraisal period. The Agency points out that three different managers in two different offices recommended that Complainant be rated "Exceeds Expectations." With regard to Complainant not been given the opportunity to serve as the Acting Director for the Office of Government Contracting, the Agency asserts that this was not an adverse action and was not related to Complainant's EEO activity. The Agency states that the decision-maker had no knowledge of Complainant's prior EEO activity. With regard to Complainant's non-selection for the position of Program Manager, the Agency asserts that this claim is moot as the non-selection was the result of administrative oversight, which has been remedied. The Agency argues that it was unable to consider Complainant for the position because he was not on the Roster of Eligibles supplied by the OPM. The Agency maintains that the administrative oversight was not reprisal and that Complainant has been offered a one-time priority consideration for a position in the same job series, grade and geographic location. Finally, the Agency argues that Complainant's attempt to raise his dismissed claim concerning intimidation and humiliation through the Federal Protective Service is improper since it was not included in the investigation.
ANALYSIS AND FINDINGS
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 she 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Initially, we observe in Complainant's statement on appeal that among the claims that were dismissed in the partial dismissal, Complainant discusses claim (5) but does not address claims (6-8). Absent any argument to the contrary, we discern no basis for reversing the Agency's dismissal of claims (6-8). With regard to claim (5), the record indicates that Complainant claimed reprisal for his whistle-blowing activity and not his EEO activity. However, reprisal for whistle-blowing in the matter here is not a basis within the Commission's purview. Accordingly, the Agency's dismissal of claim (5) on the grounds of failure to state a claim was proper and is AFFIRMED.
We shall assume arguendo that Complainant has set forth a prima facie case of reprisal with regard to claims (1-4) and (9-11). As for claim (1), the Agency stated that the selectee was chosen based on his one year of experience working in the Office of Size Standards. With respect to claim (2), the Agency asserted that Complainant was placed on the 120-day detail to the HUBZone Program because of the need to address the severe criticisms expressed in the GAO reports. With regard to claim (3), the Agency stated that Complainant did not receive a special act cash award because he was being compensated by a temporary promotion. In terms of claim (4), the Agency asserted that it concluded Complainant's temporary promotion as Assistant Director for the Office of Contract Assistance as a result of the fact that a candidate was selected to fill the permanent position. As for claim (9), the Agency explained that Complainant's performance merited a rating of "Exceeds Expectations." The Agency noted that this was a very good rating. With regard to claim (10), the Agency official responsible for deciding the one day acting assignment indicated that he did not recall the issue, but that he did not discriminate against Complainant. With respect to claim (11), the Agency stated that Complainant was not selected for the position of Program Manager due to an inadvertent administrative oversight that resulted in Complainant not been referred on the Roster of Eligibles provided by the OPM. We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions in these matters.
Complainant bases much of his attempt to establish pretext on his contention that the Director was biased against a Field Director who had testified on behalf of two employees who filed EEO complaints. Complainant states that the Director wanted him to closely scrutinize the Field Director's travel request invoices and time and attendance worksheets. According to Complainant, the Director wanted him to treat the Field Director differently than the other five Field Directors. Complainant states that once he questioned the Director's treatment of the Field Director, she became hostile and retaliatory toward him. We note that the Acting Deputy Director for the Office of Government Contracting stated that he was at a meeting with Complainant and the Director, and that the Director criticized some of the Field Director's personnel decisions and actions. The Acting Deputy Director stated that the Director indicated that the Field Director had caused two EEO complaints against the Agency. While it may appear that the Director was biased against the Field Director based on his participation in the EEO process, that does not necessarily establish that Complainant was subjected to reprisal with respect to the specific matters at issue.
With regard to claim (1), in a non-selection, pretext may be demonstrated in a number of ways, including a showing that Complainant's qualifications are observably superior to those of the selectee. See Bauer v. Bailor, 647 F. 1037, 1048 (10th Cir. 1981); Williams v. Department of Education, EEOC Request No. 05970561 (August 6, 1998). Complainant contends that his credentials were superior to those of the selectee. Complainant references his greater Agency seniority and five years of supervisory experience. A review of Complainant's resume reveals that his experience in size standards appears not to have been a primary area of focus for him, but rather one of several areas where he has been utilized. A review of the selectee's resume discloses that he had been an Economist in the Size Standards Division for a year at the time of the selection. The resume states that the selectee had among his duties various size standard assignments.
The vacancy announcement for the position states that the individual will serve as the Assistant Director, Office of Size Standards, responsible for ensuring consistent and coherent formulation of policy relevant to small business size standards. Among the duties and responsibilities were developing and coordinating the Agency size standards for small businesses, through subordinate staff, making the necessary surveys and analysis required to develop size standards. Another duty and responsibility was recommending and promulgating size standards, including establishment of procedures in connection with the size standards program. It is evident that Complainant's supervisory experience is something that the selectee lacked. The record also suggests that the selecting official was biased against the Area Director due to his support for two EEO complainants and that she became less favorably disposed toward Complainant when he would not support her efforts against the Field Director. We are mindful of the fact that a rating of the candidates on the Certificate of Eligibles gave Complainant a point total of 95 as opposed to the selectee's 92. The absence of an interview process also is cause for concern. However, for this particular position, we are not convinced that Complainant's qualifications were observably superior to those of the selectee. The selectee had some notable qualifications for the position. He had already been in the Office of Size Standards for a year and he was involved in important projects related to the vacancy that were coming to fruition. We find that Complainant has failed to establish that the Agency's explanation for its selection was pretext intended to mask retaliatory intent.
In terms of claim (2), Complainant suggests that the detail to the HUBZone Program was a form of punishment for his EEO activity. However, this argument is not sufficient to refute the Agency's position that Complainant's analytical and business background were needed to address the severe problems discussed in the GAO reports. As for claim (3), Complainant claims that he was deserving of a special act award as his performance was superior to that of a comparison who received such an award. However, we find that this contention does not refute the Agency's assertion that Complainant did not receive a special act award since he already was being compensated through the temporary promotion. The Agency persuasively explained that the comparison received a special act award since her increase in pay had been delayed a month. Further, the Agency pointed that the comparison was in the detail for 120 days whereas Complainant only served in the detail for thirty days. With respect to claim (4), Complainant has not offered a persuasive challenge to the alleged premature conclusion of his temporary promotion. The record indicates that the Agency acted without discriminatory intent when it ended Complainant's detail after it had permanently filled the position.
With regard to claim (9), there is no dispute that Complainant performed very capably, but rather the point of contention is the degree of his excellence. Complainant maintains that his performance was "Outstanding" rather than "Exceeds Expectations". Complainant contends that the Agency overlooked his accomplishments and initiative in the HUBZone Program, and also delayed its issuance of the performance evaluation. The Agency asserts that "Exceeds Expectations" was a very good rating and that there was no deliberate delay in the issuance of the appraisal. Although it is clear that Complainant's job performance was very strong during the rating period, Complainant has not persuasively established that a rating of "Exceeds Expectations" constituted reprisal. Moreover, there is no evidence that the almost four week delay in submitting the evaluation was attributable to reprisal.
As for claim (10), Complainant argues that he should have received the one day acting assignment and that the person selected was chosen so that the Acting Director could curry favor with the Director. We note that the Acting Director does not recall why he chose the selectee rather than Complainant. However, Complainant acknowledged that he did not request the assignment. We find insufficient evidence to warrant a finding of reprisal.
With respect to claim (11), Complainant justifiably was disturbed at not being considered for the Program Manager position. However, the record does not indicate that the Agency engaged in reprisal when Complainant's application was not properly reviewed. Rather, the record establishes that the Agency's Human Resources Department made a mistake in evaluating the completeness of Complainant's application package. This mistake resulted in Complainant not being referred on the Roster of Eligibles to the selecting official. The record suggests that the mistake was inadvertent rather than retaliatory and the subsequent affording of priority consideration further supports the Agency's position.
CONCLUSION
The Agency's determination of no discrimination in its final decision with regard to claims (1-4) and (9-11) is AFFIRMED. The Agency's dismissal of claims (5-8) on the grounds of failure to state a claim is AFFIRMED.
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:
June 8, 2012
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
2
0120103328
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013