01A22239
03-24-2003
Richard Becker, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Richard Becker v. Department of the Treasury
01A22239
March 24, 2003
.
Richard Becker,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01A22239
Agency No. 01-3103
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Tax Examining Clerk, GS 0962-05, at the agency's Northeast Region,
Brookhaven Service Center in Holtsville, New York. Complainant sought
EEO counseling and subsequently filed a formal complaint on February 12,
2001, alleging that he was discriminated against on the bases of sex
(male), age (D.O.B. 4/4/36), and reprisal for prior EEO activity when:
(1) effective March 14, 2000, complainant's employment was terminated;
and
on March 9, 2001, the agency failed to hire complainant for a seasonal
tax examiner position.<1>
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of sex, age, and/or reprisal in regard to (1). In so
finding, the FAD found that there was no evidence that complainant was
treated differently than similarly situated employees because of his
sex. The FAD additionally found that complainant failed to establish that
he was terminated from his position because of his age. In regard to the
claim of reprisal, the FAD found that the responsible management official
had no knowledge of complainant's prior EEO activity. In regard to (2),
the FAD found that complainant failed to establish a prima facie case of
sex and age discrimination because a number of the selectees were males
and many of the selectees were considerably older than complainant.
The FAD found that it could not conclude that the Chief of Employment
Branch II (Chief) did not have knowledge of complainant's prior EEO
activity. However, the FAD found that the agency proffered a legitimate,
nondiscriminatory reason for not hiring complainant � namely that his
full-time employment at another agency precluded him from being hired
due to a Federal law prohibiting dual employment of federal employees
for forty (40) hours or more per week. The FAD found that although
provisions for obtaining a waiver from this restriction exist, Chief
stated that the union wanted the waiver to be extended to current agency
employees first. Ultimately, the FAD found that complainant failed to
establish that management's legitimate, nondiscriminatory reasons for
not hiring him were pretexts for discrimination.
On appeal, complainant requests that we review the dismissal of additional
issues that he wished to have amended to his original complaint.<2>
We find, for the reasons stated in the FAD, that the dismissal of the
additional complaints was proper. The agency requests that we affirm
its FAD.
In the absence of direct evidence of discrimination, the allocations 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). First, complainant 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 for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the
agency is successful, then complainant must prove, by a preponderance
of the evidence, that the legitimate reason proffered by the agency was
pretext for discrimination. Id. at 256. When a complainant alleges that
he has been disparately treated by the employing agency as a result of
unlawful age discrimination, "liability depends on whether the protected
trait (under ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000).
Complainant's age "must have actually played a role in the employer's
decision-making process and had a determinative influence on the outcome."
Id.
We agree with the agency's conclusion that complainant failed to establish
a prima facie case of sex and/or age discrimination in regard to both
(1) and (2). In particular, the agency correctly found that complainant
offered no evidence that he was treated less favorably than similarly
situated employees outside of his protected group. We also find that
complainant failed to present any evidence that the agency's actions were
motivated by discriminatory animus towards complainant's age and/or sex.
We note that complainant did not present evidence to establish that his
age actually played a role in the agency's decision making process and
had a determinative influence on the outcome.
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 Administration,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in
a reprisal claim, according 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), complainant may establish a prima facie case of
reprisal by showing that: (1) he engaged in a protected activity; (2)
the agency was aware of his protected activity; (3) subsequently, he 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 26,
2000). The nexus may be shown by evidence that the adverse treatment
followed the protected activity within such a period of time and in such
a manner that a reprisal motive is inferred. See Devereux v. United
States Postal Service, EEOC Request No. 05960869 (April 24, 1997).
The Commission finds that complainant failed to establish a prima
facie case of reprisal discrimination in regard to both (1) and (2).
Specifically, we find that complainant failed to establish a nexus
between his prior protected activity and the complained-of actions.
In so finding, we note that complainant has not proffered evidence to
support an inference of reprisal motive in either (1) or (2).
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 FAD.
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
March 24, 2003
__________________
Date
1 Upon complainant's request, claim (1) was later amended on August 14,
2001, to include claim (2).
2 These claims consisted of: (1) the agency's action violated his Gulf War
Veterans Status; (2) his previously filed and closed complaints should
be consolidated with the accepted issues; and (3) the complaint should
encompass incidents occurring from 1976 to 2001, as well as decisions
rendered by the Commission in 1986.