0120090563
07-16-2010
Sarvjit Chowdhary, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Food Safety and Inspection Service), Agency.
Sarvjit Chowdhary,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Food Safety and Inspection Service),
Agency.
Appeal No. 0120090563
Agency No. FSIS2005050345
DECISION
On November 7, 2008, Complainant filed an appeal from the Agency's
September 25, 2008, 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 Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.1 The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
(1) Whether the Agency properly dismissed two of Complainant's claims
raised in his formal complaint; and
(2) Whether Complainant established discrimination concerning not being
selected for a position he sought.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a GS-12, Consumer Safety Officer in the Food Safety and Inspection Service
(FSIS), located in Omaha, Nebraska. On May 18, 2005, Complainant filed an
EEO complaint alleging that the Agency discriminated against him on the
bases of race, national origin, sex (male), religion (Hindu) color, age
(57), and reprisal for prior protected EEO activity [under Title VII],
when:
(1) on or about March 24, 2005, he was notified that he was not selected
for a position announced under Vacancy Announcement No. FSIS-MM-005-0005;
(2) his October 25, 2004, request for a reasonable accommodation to work
closer to home was denied; and
(3) his leave requests were continuously denied from December 16, 2004
through February 2005.
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 FAD found that claims (2) and (3) were subject to dismissal because
Complainant failed to contact an EEO counselor within 45 days of the
challenged actions. Specifically, Complainant first made contact with
the EEO Counselor on January 31, 2005.
Next the FAD found that in August 2004, Complainant applied for a
lateral position in Omaha, Nebraska and in February 2005 he learned
that he was not selected. The record reflects that Complainant has a
Ph.D., and several years of experience and training. Consequently,
he believed that he was the best-qualified candidate for the position,
but was not selected due to discrimination.
The FAD found that Complainant satisfied the first prong of the prima
facie analysis because he was a member of several protected groups,
however. The Agency found that Complainant failed to satisfy the second
prong of the prima facie analysis because he has not shown that he was
qualified for the position sought. In addition, Complainant has failed
to show how his protected bases affected the selection process, or was
the reason for his non-selection.
The FAD then found that the recommending official (RMOl) stated that
the applications of all the Selectees were very strong, and that their
applications showed, through specific examples, how they would handle
their responsibilities as reflected in the KSAs that the position
required, and how their knowledge, skills and abilities would be used
to achieve the Agency goals. RMOl further stated that Complainant's
application, however, did not give specific examples to show how his
experience, education, and training would be used to achieve the goals
outlined in the KSAs.
RMOl considered that fact that Complainant's supervisor had given him a
handwritten negative reference. RMO1 stated that in making her final
recommendations, she considered the supervisors' recommendations, the
application review panel, and her own assessment of the applications.
RMOl stated that she did not send Complainant's name forward for
consideration.
The FAD then found that Complainant failed to establish a prima facie
case of discrimination based on reprisal. Although there was evidence
in the record that the Agency was aware of Complainant's participation
in protected activity, he failed to demonstrate that the promotion
action at issue followed the alleged protected activity within such a
period of time that a retaliatory motive would be inferred. Finally,
the FAD found that Complainant could not demonstrate that there was a
nexus between the protected activity and the adverse action.
The FAD however, assumed arguendo that Complainant established a prima
facie case of reprisal, and found that he failed to demonstrate that
management's articulated reasons were a pretext to mask unlawful
discrimination. The FAD found that Complainant did not provide
any evidence to show that his qualifications were superior to the
Selectee's aside from his assertions that he was the best qualified
for the position. The FAD found that without more, Complainant failed
to meet his burden. The decision concluded that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he complained about all the
discriminatory acts within the required 45 days, suggesting that
none of claims should have been dismissed for untimely EEO counselor
contact. He states "If the complaint was made on January 31, 2005,
the discriminatory act must have occurred around that time."
In addition, Complainant asserts that the FAD incorrectly indicated
that he worked in Omaha, Nebraska at the time of his non-selection.
He explains that he was working in the Oak Park Office in Michigan for
the Madison District at that time.
Next, Complainant contends that the supervisor who gave him a negative
reference had been discriminating against him and purposefully gave
him a negative recommendation so that his reprisal activities were not
jeopardized, and so that Complainant could not get out of the abusive work
environment. Complainant also notes that he has not been given evidence
that those who were selected had superior KSAs to Complainant's KSAs.
In response, the Agency asks the Commission to affirm the FAD.
ANALYSIS AND FINDINGS
With respect to issue (2), Complainant claimed that, on October 25,
2004, his request for a reasonable accommodation to work closer to home
was denied. There is no evidence that he sought EEO counseling within
45 days of that October 2004 denial decision. Therefore, because he did
not seek EEO counseling until January 31, 2005, the Agency correctly
dismissed the claim concerning the October 25, 2004 denial of request
for a reasonable accommodation, for failure to contact an EEO counselor
in a timely manner. 2
We find that issue (3) is also subject to dismissal for failure to contact
an EEO counselor in a timely manner, in that Complainant was issued a sick
leave restriction letter on October 14, 2004 (which allegedly resulted
in sick leave being denied between December 16, 2004 and February 2005).
The record does not show that Complainant sought EEO counseling within
45 days of the October 14, 2005 personnel action, as required.
Accordingly, we AFFIRM the dismissals of issues (2) and (3).
Issue (1): Non-selection
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, at Chapter 9,
� VI.A. (November 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").
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). He
must generally establish 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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
The Agency stated that Complainant was not selected because his
application did not give specific examples to show how his experience,
education, and training would be used to achieve the goals outlined in
the KSAs. The Agency has broad discretion to set policies and carry out
personnel decisions, and should not be second-guessed by the reviewing
authority absent evidence of unlawful motivation. Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury,
EEOC Request No. 05940906 (January 16, 1997). Complainant may be able
to establish pretext with a showing that his qualifications were plainly
superior to those of the selectee. Wasser v. Dep't of Labor, EEOC Request
No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981). Here, although Complainant contends that he was the
best qualified candidate, the record evidence indicates that he failed
to make this showing.3
Finally, although Complainant contends that his former supervisor
intentionally gave him a negative reference in order to retaliate against
him, the record does not indicate that the former supervisor's negative
reference was motivated by unlawful factors. We note that we do not have
the benefit of an AJ's findings after a hearing, as Complainant chose
a FAD instead, and therefore, we can only evaluate the facts based on
the weight of the evidence presented to us.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.4
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
____7/16/10______________
Date
1 We note that the formal complaint form does not identify disability
as a basis, although a reasonable accommodation claim was cited. The
EEO counselor report, however, identifies a disability of diabetes.
2 Complainant informed the EEO investigator that he subsequently made the
same reasonable accommodation request (in October 2005 and February 2006).
However, this claim was addressed in Agency No. FSIS-2005-00878, and is
currently pending before the Commission under Appeal No. 0120083329.
3 In so finding, we note that the EEO Investigator stated: "Complainant
stated he does not know who the other candidates were and is not familiar
with their qualifications. Neither does he know who was selected for
the position, therefore he is unable to make a comparison of their
qualifications and his. Complainant stated he does not know who the
selecting official was. He claimed that with the time lapse he does
not remember."
4 As to Complainant's assertion that the FAD incorrectly indicated that
he worked in Omaha, Nebraska at the time of his non-selection when he,
in fact, was working in the Oak Park Office in Michigan for the Madison
District, we find that this is harmless error.
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0120090563
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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