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