0120083918
01-14-2009
Roger Curry, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Roger Curry,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083918
Agency No. 200I-0516-2008100783
DECISION
Complainant filed an appeal from the agency's August 29, 2008 final
decision concerning his equal employment opportunity (EEO) complaint.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Cemetery Gardener at the agency's Bay Pines National Cemetery facility
in Bay Pines, Florida.
On December 20, 2007, complainant filed an EEO complaint alleging that he
was discriminated against in reprisal for prior protected EEO activity
under the Age Discrimination of Employment Act of 1967 and Title VII of
the Civil Rights Act of 1964 when:
On November 11, 2007, complainant was not selected for the
position of Engineering Equipment Operator, pursuant to
announcement number MPA-07-147.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged.
In its decision, the agency found that the selecting official chose
candidate B, rather than complainant for the position because candidate
B's application indicated he possessed experience with a wider range
of heavy equipment than complainant possessed. The selecting official
stated that while complainant had more experience with a backhoe, the
selectee had operated other construction-type machinery. The agency
found that the selecting official denied any knowledge of complainant's
prior EEO activity. Accordingly, the agency found that complainant did
not establish a prima facie case of reprisal discrimination, and even
assuming he did, that complainant did not show the agency's reasons for
its decision were a pretext to mask discrimination.
On appeal, complainant argues that complainant participated in the EEO
process when he had been denied promotions in the past, including another
case in 2007 when he was denied promotion to the position of Cemetery
Caretaker Supervisor. Complainant points out that the recommending
official (R1) recommended complainant for the position but stated that
higher management had concerns (without defining what that meant) about
complainant. Complainant argues that the agency concerns were that
complainant had previously filed EEO complaints and for that reason,
despite his significantly greater experience as a heavy equipment
operator, complainant was not selected. Complainant adds that after
candidate B was selected, complainant actually trained candidate B on
the backhoe.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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 find no evidence shows that either the selecting
official, nor the recommending official, nor any of the other agency
officials responsible for the selection decision were at all aware
of complainant's prior EEO activity prior to the selection decision.
We further find that the record shows that candidate B's application
included descriptions of other heavy equipment that candidate B stated he
had operated. While we note that complainant had extensive experience
as well, we find complainant's qualifications were not so superior to
those possessed by candidate B that the agency's stated reasons for its
decision are unworthy of belief.
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the agency's final decision, finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (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
January 14, 2009
__________________
Date
2
0120083918
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120083918