0120062809
09-18-2007
John S. Muhlestein, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy, Agency.
John S. Muhlestein,
Complainant,
v.
Samuel W. Bodman,
Secretary,
Department of Energy,
Agency.
Appeal No. 01200628091
Agency No. 04-5132-HQ-SC
DECISION
Complainant filed an appeal from the agency's January 25, 2006 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. For the following reasons, the
Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a former Director at the agency's Stanford Site Office (SSO)
in Menlo Park, California. On September 10, 2004, complainant filed an
EEO complaint alleging that he was discriminated against on the bases
of race (White), sex (male), and age (61) when:
1. On July 22, 2004, complainant learned that was not selected for
the position of Site Office Manager at the Stanford or the Berkeley Site
Office under Vacancy Announcement Number ETRSC-04-01-429.2
In January 2005, complainant amended his complaint to include the
following claim based on reprisal for prior protected EEO activity:
2. On January 5, 2005, complainant was relieved of his duties as
Site Office Manager and detailed to unspecified duties for sixty days.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant elected
to receive an agency final decision instead of a hearing. In accordance
with complainant's request, the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b) concluding that complainant failed to prove
that he was subjected to discrimination as alleged.
In its final decision, the agency found that complainant's qualifications
were not superior to those possessed by the two selectees, S1 and S2.
Specifically, complainant did not have good contract management
experience since that function was recently added to the SSO position,
whereas contract management was previously performed for the SSO by the
Oakland System office where it appeared that S1 was responsible for the
procurement process. Both S1 and S2 were noted by the selecting official
as possessing strong communication skills. S2's application showed that
she had extensive management, problem solving and leadership experience.
Thus, the agency found that the selecting official's assessment of the
selectees's abilities and complainant's limitations were the reasons
for complainant's non-selection for the Site Office Manager position at
either location.
With respect to complainant's reprisal claim, the agency found that
three agency officials, complainant's immediate supervisor (M1), his
second level supervisor (M2), and another manager (M3), who assumed
complainant's duties on January 5, 2005 at the SSO, all described
legitimate, non-discriminatory reasons for the agency's decision to assign
complainant to a temporary detail to unspecified duties. The agency
noted that all three officials stated that complainant was relieved of
his duties at the SSO due to the findings of a Type A investigation which
identified safety issues that effective leadership could have prevented.
The agency stated that the results of this investigation and another
investigation involving harassment of complainant's subordinates, acted
together to cloud the selection process for the Site Office Manager
positions which occurred during the same time frame. The agency found
that valid reasons supported the agency's selection decision as well as
the agency's decision to relieve complainant of his duties by detailing
him to unspecified duties for sixty days.
On appeal, complainant states that none of his previous performance
appraisals describe any lack of leadership or weakness in his skill sets
that prevented the agency from promoting him to the Site Office Manager
position when it was upgraded to the senior executive service level.
On the contrary, complainant states that his record with the agency is
excellent and that he is more qualified that the selectees chosen for
the Berkeley and Stanford offices. Complainant states that, contrary
to what the agency found in its decision, M1 told him that he was
not selected because M1 thought complainant's new house and doctoral
thesis was distracting him and that the agency needed to hire "new blood"
(meaning younger managers). Complainant further states that he was told
by M1 that he was being detailed after the results of an "HR" matter and
that M1 never mentioned the Type A safety investigation. Accordingly,
complainant states that the agency's reasons are a pretext and that sex,
race and age discrimination are the real reason he was not selected for
the Site Office Manger positions.
Further, complainant argues that it was after M1 learned that complainant
had filed a complaint that M1 retaliated against him by relieving him
of his duties at the SSO. While the agency claims his January 5, 2005
detail was not an adverse employment action, complainant states that
he has been humiliated and his reputation within the agency has been
degraded and disgraced by the agency's actions.
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 EEOC Management
Directive 110, 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 he or
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), 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. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant case, with respect to the Site Office Manager selections,
we find that complainant has not shown that his knowledge, skills and
experience were plainly superior to those possessed by the selectees.
S1's experience with contracting procedures and procurement is evident
in her application materials, as is S2's experience in communications
and management.
With respect to claim (2), we find that complainant has not shown that
the agency's articulated reasons for its actions was pretext, namely, the
agency's belief that complainant's leadership in the handling of a recent
harassment complaint was deficient. On the contrary, while complainant
may not have been fully or accurately informed by his supervisor of
the agency's motivation for placing him in a detail in January 2005,
complainant has not shown that his supervisor's reasons were a pretext
to mask unlawful discrimination.
We therefore AFFIRM the agency's final decision, finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 18, 2007
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above referenced appeal number.
2 Although the agency did not appoint the selected candidates until later,
complainant was informed by the selecting official that he would not be
selected in late July 2004.
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0120062809
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120062809