0120170178
05-10-2018
Scotty F.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Scotty F.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120170178
Hearing No. 480-2014-00516X
Agency No. PEFY13035
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 30, 2016, final order concerning his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Instructor (Officer Marine Corps, JROTC), GS-12, at the Agency's Kubasaki High School in Japan.
On March 21, 2013, Complainant filed an EEO complaint alleging that the Agency unlawfully retaliated against him for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on November 6, 2012, he was not selected for an Extra-Duty Compensation contract as the Head Coach of Girls' Basketball for the 2012-2013 season.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's September 2, 2014, motion for a decision without a hearing and issued a decision in favor of the Agency by summary judgment on July 25, 2016. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to unlawful retaliation as alleged.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Therefore, we find that the AJ properly issued a decision here by summary judgment.
Complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of retaliatory animus. Shapiro v. Soc. Sec. 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. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 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. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Here, the evidence of record establishes that Complainant had filed a previous EEO complaint about nine months prior to the non-selection at issue here. It is undisputed that the selecting official was aware of this prior EEO activity.
Upon review, we find that the AJ correctly determined that Agency witnesses articulated legitimate, nondiscriminatory reasons for its actions. A review of the record shows that interviews were carried out by three people. The interview panel gave Complainant a score of 43.6 out of 90 possible points. The selectee scored 83.3. Witnesses indicated that the selectee was judged to be better qualified for a number of reasons. The selectee had coached AAU teams for several years and during one season coached a high school age team to the national quarter finals. She had also served as the Assistant Coach for the boys Varsity and JV Basketball teams during the previous two seasons. Complainant, on the other hand, indicated that he has two years of experience and had coached in a community league. The AJ found that the selectee had more extensive experience than Complainant - she had nine years of experience coaching at the national level, and she had played basketball at the high school, national amateur, and semi-pro levels. The AJ found that Complainant did not show that his qualifications were significantly better of "plainly superior" than those of the selectee.
In sum, we conclude that the evidence of record fully supports the AJ's determination that even if Complainant set forth a prima facie case of reprisal, he has not proven, by a preponderance of the evidence, did not establish that the Agency's reasons presented for not selecting him were pretext for reprisal.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, we AFFIRM the Agency's final order because the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful retaliation occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 10, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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