Leslie C. Wilson, Complainant,v.Louis Caldera, Secretary, Department of the Army, (National Guard Bureau) Agency.

Equal Employment Opportunity CommissionFeb 29, 2000
01986610 (E.E.O.C. Feb. 29, 2000)

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.