0120070546
12-09-2008
Margaret H. Carroll, Complainant, v. Stephen L. Johnson, Administrator, Environmental Protection Agency, Agency.
Margaret H. Carroll,
Complainant,
v.
Stephen L. Johnson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120070546
Hearing No. 160-2004-00317X
Agency No. 2003-0057-HQ
DECISION
Complainant filed an appeal from the agency's October 16, 2006 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Administrative Specialist, GS-0301-11, at the agency's Criminal
Investigation Division facility in Boston, Massachusetts. On July
30, 2003, complainant filed an EEO complaint alleging that she was
discriminated against on the basis of reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act of 1967 when:
1. On May 27, 2003, complainant was not selected for a position
under Vacancy Announcement No. HQ-OECA-MP-2003-0265.
2. The agency failed to comply with a settlement agreement
dated August 16, 2002, when it did not post a vacancy announcement
for an Administrative Specialist, GS-301-12 position in the Criminal
Investigation Division by October 15, 2002.
By letter dated February 19, 2004, the agency accepted claim (1)
for investigation. The agency dismissed claim (2) pursuant to 29
C.F.R. �1614.107(a)(1) on the grounds that claim (2) fails to state
a claim. The agency found that although the agency posted the vacancy
announcement some four months after the deadline specified in the subject
settlement agreement, complainant did not show how she was harmed by
the tardy posting. The agency therefore found that complainant was not
aggrieved by the agency's actions described in claim (2). The agency
further advised that complainant could seek review of the dismissed
claim by the administrative judge if complainant requested a hearing
regarding the accepted claim.
At the conclusion of the investigation, complainant was provided 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 in pre-hearing submissions, sought review by the AJ,
of the agency's dismissal of claim (2). By order dated January 27,
2006, the AJ ruled that complainant's claim that the agency breached
the settlement agreement of 2002 was not an issue properly before her.
The AJ held a hearing on February 17, 2006. At the conclusion of the
hearing, both complainant and the agency submitted post-hearing closing
statements. In her statement, complainant argued that the agency's
failure to comply with the settlement agreement of August 16, 2002,
specifically, its failure to assign her additional duties as described
in the agreement, led to the non-selection described in claim (1) and
complainant contended the AJ should have considered that evidence.
In her decision, dated September 29, 2006, the AJ found that on August 16,
2002, complainant and the agency entered into a settlement agreement in
which the agency agreed to the following action (among other matters):
2a. The [a]gency, at its earliest convenience, however, no later
than October 15, 2002, shall post for 14 days a vacancy announcement
for an Administrative Specialist at the GS-301-12 level for the Criminal
Investigation Division.
2b. Prior to September 15, 2002, . . . [c]omplainant will be assigned
additional duties, which will allow her to demonstrate her knowledge,
skills, and abilities to assume higher level work.
7. If [c]omplainant believes that EPA has not complied with the
terms of the Settlement Agreement, [c]omplainant may request that the
terms be specifically implemented, or, alternatively, that the complaints
be reinstated for further processing at the point processing closed,
in accordance with the procedures found at 29 C.F.R. 1614.504 with all
legal, substantive and procedural rights saved as if [c]omplainant had
proceeded without delay. Any such request must be made within 30 calendar
days of the date [c]omplainant knew or should have known of the alleged
non-compliance and must be forwarded to the Director, Office of Civil
Rights, with a summary of the grounds of why she believes that this
agreement has not been carried out by the [a]gency.
The AJ further found that the agency did not assign additional duties to
complainant as specified in paragraph (2b) of the settlement agreement.
However, the agency did post the vacancy announcement described in
paragraph (2a), though the initial announcement posted on February
14, 2003 was cancelled a week later. The AJ noted that the vacancy
announcement was re-announced on February 28, 2003. Complainant applied
for the position and was selected for an interview. A three-member
panel interviewed both complainant and another candidate (S). The AJ
found that all three panel members recommended S for the position to the
selecting official based upon his skills and experience. The selecting
official selected S. Complainant was not selected.
The AJ concluded that complainant had established a prima facie case
of discrimination in that she applied for the position, the selecting
official was aware of complainant's prior EEO activity and complainant was
not selected for the position. However, the AJ found that complainant
did not show that the agency's reasons for selecting S were unworthy
of belief, nor that her own qualifications were plainly superior to S's
qualifications. While the selecting official was aware of complainant's
prior EEO activity, the AJ considered the official's statement that his
selection was based solely on the recommendation of the panel members.
The AJ found that complainant did not show that reprisal motivated the
panel members to recommend S for selection.
Additionally, the AJ found that complainant's claim that the agency's
failure to abide by the 2002 settlement agreement was not properly
before her and was not evidence of discriminatory animas in the selection
process of 2003. The AJ thus found that complainant did not show that
discrimination based on reprisal occurred as alleged. The agency
subsequently issued a final order on October 16, 2006, adopting the
AJ's finding that complainant failed to prove that she was subjected to
discrimination as alleged.
On appeal, complainant argues again that reprisal motivated the agency's
selection decision. Additionally, the matter of the agency's breach of
the 2002 settlement agreement was properly raised and should have been
considered by the AJ.
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, � VI.B. (November 9, 1999).
2003 Non-selection
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, we concur with the AJ's finding that complainant
did not show that reprisal motivated the selecting official, nor that
the panel members who recommended S for selection over complainant were
aware of and considered complainant's prior protected activity in making
their recommendation. We find that complainant's qualifications for the
subject position were not observably superior and that the agency is free
to choose among qualified candidates. We concur with the AJ's finding
that no reprisal discrimination occurred with respect to claim (1).
2002 Settlement Agreement
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996).
EEOC Regulation 29 C.F.R. � 1614.504(b) provides that upon receipt of
an allegation of breach,
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resole the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or decision. . . .
With respect to claim (2), we find the agency improperly processed
complainant's claim regarding breach of the settlement agreement of
August 16, 2002. The record shows that in her complaint dated July
30, 2003, complainant notified the agency that she believed the agency
had breached the settlement agreement when it did not post a vacancy
announcement for an Administrative Specialist, GS-301-12 position in
the Criminal Investigation Division by October 15, 2002.1
By letter dated February 19, 2004, the agency notified complainant that
claim (2) (breach of settlement agreement) was dismissed pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim. The agency further
advised complainant that the dismissed claim "can only be reviewed by
an EEOC Administrative Judge if a hearing is requested on the accepted
portion of the discrimination complaint but is not appealable until
final action is taken on the accepted portion of the discrimination
complaint." The record shows that complainant requested that the AJ
review the dismissed claim and the AJ correctly found that claim (2)
was not properly before her.
We find the agency improperly dismissed complainant's breach claim (claim
(2)) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim,
and also improperly advised complainant of her rights to request the
AJ's review of the dismissed claim in its letter of February 19, 2004.
We find this claim should be remanded to the agency for appropriate
processing pursuant to 29 C.F.R. � 1614.504 et seq.
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the agency's final decision with respect to claim (1), finding
no discrimination. We REVERSE the agency's final decision with respect
to claim (2) and REMAND claim (2) to the agency for further processing
as provided herein.
ORDER
The agency is ordered to process claim (2) of the instant complaint, as
an allegation of noncompliance with the settlement agreement of August
16, 2002 and to resolve the matter and respond to the complainant in
writing within 35 days of receipt of this decision. The agency shall
process the instant allegation in accordance with 29 C.F.R. � 1614.504.
A copy of the agency's final determination (written response) must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
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
December 9, 2008
__________________
Date
1 We observe that the EEO Counselor's report was found by the AJ to be
incomplete and not representative of the claims complainant presented at
the time she sought counseling regarding the May 2003 selection event.
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2
0120070546
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070546