Adrienne R. Perry, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionJun 17, 2010
0120101109 (E.E.O.C. Jun. 17, 2010)

0120101109

06-17-2010

Adrienne R. Perry, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.


Adrienne R. Perry,

Complainant,

v.

Timothy F. Geithner,

Secretary,

Department of the Treasury,

(Internal Revenue Service),

Agency.

Appeal No. 0120101109

Agency No. IRS 09-0533-F

DECISION

On January 15, 2010, Complainant filed an appeal from the Agency's January

8, 2010, final decision concerning her 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 appeal is deemed timely and is accepted pursuant

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

AFFIRMS the Agency's final decision.

BACKGROUND

On April 29, 2009, Complainant filed an EEO complaint alleging that she

was discriminated against on the basis of reprisal for prior protected

EEO activity when:

On February 3, 2009, Complainant was not selected for a Contact

Representative (GS-0962-05) position. Complainant completed two of

the three steps in the application process, but did not complete the

final step (the Telephone Assessment Program (TAP) phase). The hiring

coordinator selected 137 applicants, but not Complainant, as a Contact

Representative.

At the conclusion of the investigation, Complainant was provided with a

copy of the report of investigation and notice of her 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). The decision concluded that Complainant failed

to prove that she was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant asserts that the Agency, in its final decision, failed to

consider the fact that her name was not on a list of finalists for the

Contract Representative position, and that this fact tends to show that

the reason for her non-selection must have been reprisal.1

ANALYSIS AND FINDINGS

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, 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). 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 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, 120 S.Ct. 2097 (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. v. Green, 411 U.S. 792, 802 (1973)). 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. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), Complainant may establish a prima facie case of

reprisal by showing that: (1) she engaged in a protected activity;

(2) the Agency was aware of the protected activity; (3) subsequently,

she was subjected to adverse treatment by the Agency; and (4) a nexus

exists between the protected activity and the adverse treatment.

Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

The Commission finds that Complainant failed to satisfy the second step

of the analysis - showing Agency awareness of her protected activity -

and therefore the Commission agrees with the Agency that Complainant did

not establish a prima facie case of reprisal. There simply is no evidence

whatsoever that would raise an inference of discrimination on the part of

the responsible hiring officials involved in overseeing the application

process for the Contact Representative positions. All involved officials

explained that they did not know Complainant, and that they did not

know about her past EEO activity. Indeed, Complainant explained that

"I can only assume" that the responsible officials were aware of her

prior EEO activity. See Kess v. USPS, EEOC Appeal No. 0120064998 (April

10, 2008); Ortega v. Department of Justice, EEOC Appeal No. 01933664

(February 15, 1994) ("[A]ppellant failed to establish a prima facie case

of reprisal discrimination primarily because the record does not show

that the alleged discriminating officials were aware of appellant's

EEO activity."); cf. Ng v. Department of the Treasury, EEOC Appeal

No. 01A41567 (September 8, 2005) ("[M]ere conjecture that the Agency's

explanation is a pretext for intentional discrimination is insufficient

because subjective belief, however genuine, cannot constitute evidence

of pretext or provide a basis for remedial belief."). Mere assumptions,

without more, cannot be used to move forward with this type of claim.

Because Complainant failed to establish a prima facie case of reprisal,

we AFFIRM the Agency's finding of no discrimination.

CONCLUSION

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

including those not specifically addressed herein, the final Agency

decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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), 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 (S0408)

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 (Z1008)

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

June 17, 2010

__________________

Date

1 The Agency dismissed one claim of alleged discrimination regarding

an incident which occurred on March 27, 2009. Because Complainant does

not contest this dismissal on appeal, we do not address the matter.

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0120101109

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120101109