01986610
02-29-2000
Leslie C. Wilson, Complainant, v. Louis Caldera, Secretary, Department of the Army, (National Guard Bureau) Agency.
Leslie C. Wilson v. Department of the Army
01986610
February 29, 2000
Leslie C. Wilson, )
Complainant, )
) Appeal No. 01986610
v. ) Agency No. T-0138-TX-A-02-98-O
)
Louis Caldera, )
Secretary, )
Department of the Army, )
(National Guard Bureau) )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity) in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
For the reasons stated herein, the agency's FAD is affirmed.
ISSUE PRESENTED
The issue on appeal is whether complainant has established that the
agency discriminated against him based on the above factor.
BACKGROUND
During the period in question, complainant was employed as an Auditor,
GS-11, at a Texas facility of the agency. Believing he was a victim of
discrimination, complainant sought EEO counseling and, subsequently,
filed a complaint alleging that the agency discriminated against him
based on reprisal (prior EEO activity) when it failed to certify<2>
him for a Labor Relations Specialist position (LRS position), GS-12.
Complainant stated that the agency's action was discriminatory because
the certifying official (C-1) certified only one applicant (E-1) out
of five<3> and the one she certified was her former supervisor from
two prior positions. Complainant further indicated that although he
may not have been the most qualified applicant for the LRS position,
he did have the basic qualifications, which should have allowed him to
be certified. To further support his qualifications for the position,
complainant added that the original vacancy announcement indicated that
education could be substituted for experience.
C-1 stated that she did not certify complainant because his experience
did not reflect the knowledge, skills and abilities to successfully
perform the duties of the LRS position, whereas, E-1 held the minimum
qualifications required by the vacancy announcement. She further
indicated that the substitution of education for experience was removed
from the vacancy announcement because it was inappropriate for a GS-12
position. C-1 added that she did not know that complainant filed a
prior complaint.
At the conclusion of the complaint's investigation, the agency notified
complainant of his right to a hearing before an EEOC administrative judge
or an immediate FAD. The agency issued a FAD finding no discrimination
based on reprisal. This appeal followed.
ANALYSIS AND FINDINGS
In order to establish a prima facie case of discrimination for an
allegation of reprisal, complainant must show: 1) that he engaged in
protected activity, e.g., participated in a Title VII proceeding;
2) that the responsible management official (RMO) was aware of the
protected activity; 3) that he was disadvantaged by an action of the
agency contemporaneously with or subsequent to such participation; and
4) that there is a causal connection between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F.Supp. 318, 324 (D.Mass), affirmed,
545 F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d
80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The causal connection may be shown by evidence that the adverse action
followed the protected activity within such a period of time and in such
a manner that a reprisal motive is inferred. Simens v. Department of
Justice, EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
"Generally, the Commission has held that nexus may be established if
events occurred within one year of each other." Patton v. Department of
the Navy, EEOC Request No. 05950124 (June 27, 1996).
On September 26, 1996, complainant filed an EEO complaint against the
agency naming E-1 as a RMO. At the time, E-1 and C-1 were working
together in Human Resources. In July 1997, complainant applied for a
LRS position with the agency. In a letter dated August 27, 1997, C-1
informed complainant that she did not certify him for the LRS position
because he lacked the minimum qualifications required. She later stated
that retaliation was not a basis for her decision and that she did not
know of complainant's EEO activity.
The record revealed that the LRS position required one year of
specialized experience at at least the GS-11 level. Specialized
experience was work that afforded an applicant knowledge, skills, and
abilities that focused on labor contract negotiation and administration.
According to the record, E-1 had two years of experience as a Personnel
Staffing Specialist, GS-11. She indicated that her position afforded
her the required specialized experience.<4> The record indicated that
complainant had at least two years of experience as an Auditor, GS-11<5>,
as well as 11 years of experience handling negotiations in a self-owned
and a small company in the 1970s and 1980s. The position description
for complainant's Auditor position did not list negotiating as a duty.
The record further revealed that the agency's Merit Placement Plan gave
certifying officials the discretion, not the requirement, to add
applicants who did not possess the minimum qualifications necessary for a
position to the list for the first level supervisor. Based on the
foregoing, the Commission finds that complainant did not satisfy all four
of the factors necessary to establish a prima facie case of retaliatory
discrimination.
CONCLUSION
The Commission finds that complainant failed to establish a prima facie
case of discrimination based on reprisal. Therefore, after a careful
review of the record, including complainant's contentions on appeal, the
agency's response, and arguments and evidence not specifically addressed
in this decision, we AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 29, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Based on the record, "to certify" meant that a Human Resources official
determined that an applicant had the minimum requirements of a position as
prescribed in a vacancy announcement. The official then submitted a list
of "certified" applicants to the first level supervisor for the position.
3Complainant referred to the agency's Merit Placement Plan for
competitive technicians, which stated "[a]pplicants who do not meet
the basic eligibility requirements may be included on the certificate,
provided there are less than three basically eligible candidates."
4The record did not contain a position description for Personnel Staffing
Specialist, GS-11.
5In lieu of completing the application in full, complainant attached
a resume to his application for the LRS position. He did not indicate
the grade levels of his prior positions on his resume.