0120110206
05-25-2012
Ricky Wilson, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Ricky Wilson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110206
Agency No. ARANAD09AUG0374
DECISION
On October 4, 2010, Complainant filed an appeal from the Agency's August 30, 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 (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 AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issue presented is whether the Agency properly determined that Complainant did not establish that he was discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Pneudralic Systems Mechanic, WG-8255-10, at the Agency's Anniston Army Depot facility in Anniston, Alabama. On September 24, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity arising under Title VII when:
1. On August 15, 2009, he received a rating of "2" on his FY 2009 performance appraisal from his supervisor;
2. On August 15, 2009, his FY 2009 performance appraisal did not reflect a rating for the period of February 15, 2009 through June 15, 2009, when he served as Acting Pneudraulic Systems Mechanic Leader; and
3. On or about August 11, 2009, he was informed by a coworker that management would not allow him (Complainant) to manage any programs during his term as Acting Leader.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency noted that Complainant did not participate in the Fact Finding Conference (FFC) that was conducted during the investigatory stage, and that Complainant had failed to submit an affidavit to the EEO Investigator, which was requested after his failure to appear at the FFC. The Agency found that Complainant had failed to establish a prima facie case of reprisal discrimination, in part due to his failure to provide any information in support of his complaint during the investigation. The Agency noted that Complainant's prior EEO activity occurred more than 10 months before the events at issue. Assuming for the sake of argument that Complainant had established a prima facie case of reprisal discrimination, the Agency found that it had articulated legitimate, nondiscriminatory reasons for its actions. Complainant's first-line supervisor testified that he rated Complainant the same in Fiscal Year (FY) 2009 as he did in FY 2008, as there was no indication that Complainant's performance was any better or any worse than it had been that prior year. He also testified that although the performance appraisal did not specifically address Complainant's performance during his temporary promotion, Complainant's performance during the temporary promotion was considered. The Agency also noted that all of the individuals who had been temporarily promoted to the Pneudralic Systems Leader position were assigned the same duties, and that there was no requirement that any specific programs were to be supervised. The Agency found that Complainant had not shown the Agency's reasons to be pretext for discrimination because he had not provided any information or testimony during the investigation in support of his complaint. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit any brief or statement in support of his appeal. The Agency submitted a brief in which it urged the Commission to affirm its final decision.
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 Chap. 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").
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 he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804, n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp., supra). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Complainant had engaged in previous EEO activity in the form of prior EEO complaints filed with the Agency. Complainant's first and second-level supervisors admitted that they were each aware of Complainant's prior activity. Complainant claimed that he should have received a higher evaluation for FY 2009, and should have been able to manage programs during the time of his temporary detail. Complainant has not put forth any argument as to the existence of a nexus between his prior activity and the current adverse actions, and the 10-month gap of time is somewhat tenuous to suggest causation.
However, assuming Complainant did establish a prima facie case or reprisal discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The record evidence shows that the performance evaluation ratings were on a scale of 1 to 5, with a 1 being the highest score, and a 5 being unsuccessful. Complainant received a rating of 2 in FY 2009. Complainant's first-level supervisor testified that he gave Complainant the same rating in FY 2009 as he did in FY 2008, which also was a 2, and he denied that Complainant's EEO activity played any part in the rating given. He also testified that he considered Complainant's performance in the temporary Leader position when determining Complainant's rating. The Agency also articulated that all of the individuals temporarily promoted to the Pneudraulic Systems Leader position were assigned the same duties. We find that Complainant has not shown any of the Agency's reasons to be pretext for discrimination. Complainant did not submit an affidavit, appear at the FFC, or submit any statement in support of his appeal. In the absence of any argument from Complainant in support of his claim, we find it appropriate to affirm the Agency's final decision finding that Complainant did not establish that he was discriminated against as alleged.
CONCLUSION
Based on a thorough review of the record, and in the absence of contentions on appeal from Complainant, we AFFIRM the Agency's finding of 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
May 25, 2012
Date
2
0120110206
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110206