0120111462
01-13-2012
Dawn Johnson, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Dawn Johnson,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120111462
Hearing No. 410-2008-00311X
Agency No. 2006-0040-R4
DECISION
Complainant filed an appeal from the Agency’s Final Order 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. For the following
reasons, the Commission AFFIRMS the Agency’s Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Environmental Protection Specialist at the Agency’s Region 4
facility in Atlanta, Georgia. On February 24, 2006, Complainant filed
an EEO complaint alleging that the Agency discriminated against her on
the bases of race (African-American), sex (female), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when:
1. Complainant was not notified of the status of her application
for positions to which she had applied;
2. Complainant received a rating of "unqualified" for an Equal
Employment Opportunity Specialist position, GS-9/11 (Reg. 4-MP-2005-0163)
("EEO position");
3. Complainant's inquiries regarding an Environmental Protection
Specialist position, GS-9/12, (Reg 4-DE-2006-0002) (EPSl position)
were ignored; and
4. Complainant received an incorrect rating for an Environmental
Protection Specialist (EPS), GS-9-12 position (Vacancy Reg 4-DE-2006-0002)
(EPS 2 position).
Previously, in Johnson v. Environmental Protection Agency, EEOC Appeal
No. 0120071066 (December 4, 2007), the Commission affirmed the Agency’s
dismissal of claims (1), (2) and (3). Claim (4) was identified as
a non-selection claim regarding the identified vacancy announcement
(Reg 4, DE-2006-0002) and remanded to the Agency for an investigation.
Record on Appeal (ROA) at 112.
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). Complainant
requested a hearing and the AJ held a hearing on March 15, 2010.
Thereafter, the AJ issued a decision on November 16, 2010. AJ’s Order
Entering Judgment, (AJ Decision, November 16, 2012; ROA at 12.
In her Decision, the AJ found that Complainant failed to establish a
prima facie case of discrimination based on her race and sex because
the selectee was also African-American and also female. AJ Decision at 7.
In her consideration of Complainant’s claim insofar as it is based on
reprisal, the AJ found that Complainant did not present a prima facie
case of reprisal discrimination. Id. at 8. In the selection process,
Complainant had applied for the identified position, but her application
was scored too low by the EZ-Hire system to be ranked among the top three
scoring applicants. Id. at 3, 4. The AJ noted that the Agency official
(H1) responsible for the certificate of eligible applicants submitted
to the selecting official, was unaware of Complainant’s prior EEO
activity. The AJ found that Complainant did not present evidence that more
likely than not H1 had become aware of her prior EEO activity through
discussions with other HR Officials that Complainant had identified in
her prior complaints. Id. at 4. Moreover, the AJ found no nexus between
Complainant’s prior EEO activity and the selection process at issue.
Id. at 8. The AJ therefore found that Complainant had not shown that
the Agency’s decision not to refer her application to the selecting
official was motivated by discrimination on any basis.
The Agency subsequently issued a Final Order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (November
9, 1999).
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. Soc. Sec. 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. 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).
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
Constr. 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.
Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, we find that substantial evidence supports the AJ’s
decision in all respects. We find no dispute between the parties that
the selectee for the Environmental Protection Specialist, Vacancy Reg
4-DE-2006-0002, was the same sex and race as Complainant. We further find
that Complainant did not show that H1 knew about Complainant’s history
of filing EEO complaints, or other protected activity from other officials
involved in the prior selection processes that Complainant had challenged
through the EEO complaints process. In her complaint, Complainant alleges
that H1 adjusted Complainant’s score in the application process so that
Complainant was not referred to the selecting official for consideration.
EEO Counselor’s Report, Report of Investigation (ROI) at 0005. We find
that Complainant failed to present evidence to support this allegation
and that H1 denied adjusting Complainant’s answers to the application
questions posed by the Agency’s EZ Hire system. Testimony of H1,
March 15, 2010; Hrg Tr. at 175, ROA at 383. We find, as did the AJ, that
Complainant failed to present evidence that the Agency’s reasons for
failing to select her were a pretext to mask discrimination. Rather,
we find the evidence shows that Complainant’s application was not
forwarded to the selecting official because her application did not
receive enough points to place her among the top three scoring applicants.
CONCLUSION
We AFFIRM the Agency’s Final Decision finding 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
January 13, 2012
__________________
Date
2
0120111462
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111462