01974388
10-29-1999
Oscar Lewis, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Oscar Lewis v. Department of the Interior
01974388
October 29, 1999
Oscar Lewis, )
Appellant, )
) Appeal No. 01974388
v. ) Agency No. FNP-95-079
)
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal of a final agency decision 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. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED.
ISSUE PRESENTED
The issue presented herein is whether appellant has established that
he was discriminated against on the above-referenced basis when, on
April 3, 1995, he was not selected for a seasonal maintenance (term)
worker position.
BACKGROUND
Appellant, an applicant for employment with the Department of the
Interior, filed a formal complaint on May 24, 1995, in which he raised
what has been identified as the issue presented. The agency accepted
the complaint for processing and, at the conclusion of the investigation,
issued a final decision finding no discrimination. This appeal followed.
The central event in this case occurred on April 3, 1995 when appellant
was not selected to one of four seasonal maintenance worker positions.
Of the four positions available, two were located in the Oteen district
and two were located in the Balsam Gap district.
The evidence in the file indicates that appellant began his employment
as a seasonal maintenance worker in April 1983. He worked each
year thereafter with the exceptions of 1986 and 1990. During the
application process, the selecting officials were provided with a list
of 27 candidates, each placed within one of two categories. Four of them
were placed within Group I (ten point compensable veterans) and the rest
were placed within Group II (five point non-compensable veterans).
The guidelines attached to the vacancy notice indicated that selections
could not be made from the Group II category as long as there were three
or more qualified applicants available from Group I. Because there
were four qualified applicants in the Group I category, they were given
priority consideration for the jobs located within the Oteen district.
Once the two Oteen vacancies were filled, the agency could select
applicants from the Category II group for the Balsam Gap positions
because, at that point, there were only two applicants available from
Group I. The agency selected two experienced applicants, neither of
which was appellant, from Group II to fill the Balsam Gap vacancies.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
alleging discrimination is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973). See Hochstadt v.
Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases). First, appellant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802. Next, the agency must
articulate a legitimate, nondiscriminatory reason(s) for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful, then the appellant must prove,
by a preponderance of the evidence, that the legitimate reason proffered
by the agency was a pretext for discrimination. Id. at 256.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, appellant must show: (1) that he engaged in
protected activity, e.g., participated in a Title VII proceeding; (2) that
the alleged discriminating official was aware of the protected activity;
(3) that he was disadvantaged by an action of the agency contemporaneous
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 Found. for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass), aff'd, 545 F.2d 222 (1st Cir. 1976);
see also Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985);
Burris v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th
Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
In the present case, appellant has shown that he engaged in prior
EEO activity. The evidence indicates that appellant filed formal
EEO complaints in 1985 and 1990. Appellant has also shown that the
alleged discriminating official knew of the prior EEO activity. In his
affidavit, the alleged discriminating official indicated that he was
directly involved in appellant's prior complaints. Because the alleged
discriminatory event occurred in 1995 and the prior complaints were
filed in 1985 and 1990, appellant has shown that he was disadvantaged
by an action of the agency subsequent to his participation in the
EEO process. Appellant has not shown, however, that there is a causal
connection between the alleged discriminatory event and the prior EEO
activity. The file contains no evidence which suggests that appellant's
non-selection was related to his previous EEO complaints. Assuming the
prior complaints are not on-going, the fact that the prior EEO
complaints were filed five and ten years before the present one is an
indication that the requisite nexus does not exist.
Assuming, however, that appellant has established a prima facie case of
reprisal, we find that the agency has met its burden of articulating a
legitimate, nondiscriminatory reason for its actions. Specifically, the
agency stated that appellant was not selected for the seasonal maintenance
worker positions in Oteen because Group I employees received priority
consideration for those jobs. Regarding the Balsam Gap positions,
the agency stated that appellant was not selected in favor of two
employees that had more work experience at that location than appellant.
The agency also stated that the two selected employees had received
excellent performance appraisals regarding roadway litter pickup (the
duty that the selectees would be required to perform) while appellant
had problems in that area.
Because the agency has proffered a legitimate, nondiscriminatory reason
for the alleged discriminatory event, appellant now bears the burden
of establishing that the agency's stated reason is merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Appellant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In the present
case, appellant has failed to meet that burden. Appellant offers no
evidence to dispute the agency's contention as to why he was not hired.
On appeal, he argues that the agency's final decision fails to address
the gravamen of his complaint, i.e., special consideration given to Group
I employees. We disagree. In its decision, the agency states plainly
that the selecting official was bound by statutory requisite to provide
special consideration to applicants identified as ten point veterans.
Because such special consideration is not prohibited by our regulations,
we hold that appellant's arguments are not sufficient to establish
pretext.
CONCLUSION
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the final agency
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
Oct. 29, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations