0120170587
03-20-2018
Antoinette L.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Antoinette L.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120170587
Hearing No. 410-2016-00069X
Agency No. FBI-2015-00045
DECISION
On November 28, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 21, 2016, 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.
ISSUE PRESENTED
Whether the EEOC Administrative Judge properly dismissed Complainant's claim that she was discriminated against based on reprisal when she was not selected for the position of Supervisory Administrative Specialist in the Federal Bureau of Investigation's Atlanta Division.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative Specialist in the Federal Bureau of Investigation's Atlanta Division, Atlanta, Georgia.
On April 16, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was not selected for the position of Supervisory Administrative Specialist.
The Agency accepted the complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). The Agency filed a motion to dismiss on April 14, 2016. Complainant, represented by legal counsel, filed a brief in opposition.2
On September 7, 2016, following a discovery period, the AJ issued a decision, granting the Agency's motion to dismiss. In doing so, the AJ stated that he used the evidence from the report of investigation, and construed it in the light most favorable to Complainant.
By final order issued on October 21, 2016, the Agency fully implemented the AJ's decision, granting its motion to dismiss Complainant's complaint.
The instant appeal followed. The Commission does not have record of a brief or other position statement regarding this appeal from the Complainant.
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, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
As an initial matter, the Agency contends that Complainant's appeal, filed on November 28, 2016, was untimely and should be dismissed. However, as the record contains no proof of when the Agency's October 21, 2016 final order was received, we decline to dismiss Complainant's appeal as untimely filed.
To establish a prima facie case of unlawful reprisal, Complainant must show that: (1) she engaged in prior protected activity, (2) the responsible management officials were aware of that activity, (3) she was then subjected to adverse treatment by these officials, and (4) a nexus exists between the prior protected activity and the adverse treatment.
Here, the record developed during the investigation shows that an opening for a Supervisory Administrative Specialist, GS-11/12, was posted at the Agency's Atlanta division. The vacancy announcement detailed the "specialized experience" required to qualify for the position. No particular educational qualifications or degrees were required.
Complainant applied for the position, and her application described her experience, as well as indicating she had a bachelor's and master's degree. Complainant was among the applicants considered qualified for further consideration and one of the five applicants interviewed by a career panel. Each of the five applicants interviewed was asked the same questions by the three-member career board.
The interview responses were scored on the same core competencies on a "Consensus Final Rating Form." After the interviews were completed, one candidate, the ultimate selectee, received eight (8) consensus "Exemplary" ratings and two (2) consensus "Skilled" ratings. Complainant received nine (9) "Competent" ratings and one "Skilled" rating, but no exemplary ratings. The results and recommendations of the career board were report to the Special Agent in Charge ("SAC") of the Atlanta division for final selection. The SAC accepted the career board's recommendation and selected the selectee for the position.
Complainant had previously filed a number of EEO complaints with the Agency between 1992 and 2010. None of the career board members who scored her knew Complainant had engaged in prior EEO activity until long after the selection decision was made. The SAC was aware that certain documents stored in the office related to a previous EEO complaint filed by Complainant, but there is no indication he was aware of the details of the complaint.
Based on these facts, we find no error in the AJ's conclusion that Complainant's allegations lacked sufficient factual support to state a viable claim of reprisal. Like the AJ, we conclude that there are simply no facts in the record which would plausibly show that a nexus existed between Complainant's protected activity, which occurred years before, and her non-selection for the position at issue. Complainant provided no information about the content of these prior EEO complaints, who they were against, or who knew about them. Most significantly, she does not contend that any of the career panel members, who scored the selectee higher and recommended him for selection to the SAC, had any knowledge of her prior EEO activity. Even with the limited knowledge by the SAC, the passage of years between Complainant's most recent protected activity, as well as no indication that the SAC was involved in the prior EEO matters, also creates no inference of retaliatory animus. Without alleging facts to suggest a plausible nexus between her protected activity and the non-selection at issue, Complainant cannot prove her reprisal claim.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's final order adopting the AJ's decision to dismiss the complaint for failure to state a viable claim of reprisal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__3/20/18________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant was initially represented by counsel. However, that representation ceased at some point during the hearing process. There is no record of Complainant retaining new counsel.
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