Terence A. Taips, Complainant,v.No. 8-05-72 Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionMar 17, 2000
01993712 (E.E.O.C. Mar. 17, 2000)

01993712

03-17-2000

Terence A. Taips, Complainant, v. No. 8-05-72 Alexis M. Herman, Secretary, Department of Labor, Agency.


Terence A. Taips, )

Complainant, )

) Appeal No. 01993712

v. ) Agency

No. 8-05-72

)

Alexis M. Herman, )

Secretary, )

Department of Labor, )

Agency. )

)

DECISION

On April 5, 1999, the complainant initiated a timely appeal of a March

15, 1999 final agency decision concerning his complaint of unlawful

employment discrimination on the bases of sex (male), age (07/19/48),

physical disability (back injuries), and 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 Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and the Rehabilitation

Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1> Complainant alleges

he was discriminated against when he was not selected for the temporary

position of a supervisory claims examiner at grade level GS-12/13 which

was advertised in Vacancy Announcement CH-97-163 ESA/OWCP. The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405). For the following reasons, the Commission

AFFIRMS the FAD.

Procedural Dismissal

As an initial matter, the Commission notes that in its final decision,

the agency stated that after the filing of his March 5, 1998 complaint,

the complainant raised issues of reprisal, including a reassignment

and subsequent acts of alleged reprisal. The agency determined in

its final decision, in addition to its finding of no discrimination,

that the reprisal issues were not brought to the attention of an EEO

Counselor as required. On appeal, the complainant asserts that these

issues should have been addressed during the investigation of the present

complaint since they reflect a continuing pattern of reprisal and that the

agency's Civil Rights Center Director should not be allowed to �grandly

tell [him]� that she would �ignore� an important part of his complaint

and have him re-start the complaint process.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part, that an

agency shall dismiss a complaint which raises a matter that has not been

brought to the attention of an EEO Counselor, and is not �like or related�

to a matter on which the complainant has received counseling. A later

claim or complaint is "like or related" to the original complaint if the

later claim or complaint adds to or clarifies the original complaint and

could have reasonably been expected to grow out of the original complaint

during the investigation. See Scher v. United States Postal Service,

EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal

Service, EEOC Request No. 05891068 (March 8, 1990). However, matters are

not considered to be "like or related" when they are factually distinct.

Upon review of the circumstances of this case, the Commission will

not disturb the agency's dismissal of reprisal issues on procedural

grounds for the reasons which follow. The reprisal issues, including

complainant's reassignment and other subsequent incidents, are factually

distinct from the issue of the complainant's non-selection. In addition,

the Commission notes that in narratives attached to his complaint and

during counseling, the complainant specifically stated that the �immediate

specific action giving rise to this complaint� was his non-selection.

In addition, the record contains an April 14, 1998 letter from the agency

to the complainant, notifying him that the only issue that was accepted

was the issue of his non-selection and that, if he disagreed with the

accepted issue, he was to inform the agency within 10 days. There is no

evidence that the complainant advised the agency that he disagreed with

the agency's definition of the issue of his complaint. Also, in a May 21,

1998 letter from the investigator, the complainant was again informed that

the issue to be investigated was the issue identified in the April 14,

1998 letter to him from the agency. Moreover, the agency noted in its

final decision that it was not clear that the complainant was advised

that he should bring the issues that occurred after the non-selection to

the attention of an EEO Counselor and informed the complainant therein

that he should bring his reprisal allegations to the attention of an

EEO Counselor within 45 calendar days of receipt of the final decision.

Accordingly, the Commission finds no error in the agency's decision.

Finally, the complainant is advised that to the extent that he may be

raising new issues on appeal, he shall initiate contact with an EEO

Counselor within 15 days after he receives this decision, if he wishes

to pursue those issues. Qatsha v. Department of the Navy, EEOC Request

No. 05970201 (January 16, 1998).

Decision on the Merits

The complainant, a grade level 12 (GS-12), senior claims examiner,

was one of three candidates certified as eligible for the position of

a temporary supervisory claims examiner (GS-12/13). The position was

filled in September 1997. The selectee was a non-disabled, female claims

examiner, GS-11, in her twenties. The other candidate was a Black male,

over the age of 40. Believing that he was discriminated against when

he was not selected, the complainant filed a formal EEO complaint,

dated February 24, 1998, and a formal investigation was conducted.

Thereafter, the agency issued a final agency decision which found

no discrimination. In its decision, the agency concluded that the

complainant was not the best qualified candidate and it had therefore

articulated a legitimate, nondiscriminatory reason for its action.

The agency noted that the selectee was chosen because her success rate in

adjudicating workers' compensation claims at 91 percent was superior to

that of the complainant's 81 percent; that the selecting official (SO)

had a greater level of confidence in the selectee's ability to work

independently and to exercise skill and tact, while the complainant

was argumentative and insulting in his correspondence; that while the

complainant had a significant history demonstrating his ability to plan,

organize and coordinate, the selectee was superior to the complainant

in her ability to present ideas and concepts. The agency further

stated that the complainant had failed to demonstrate that the agency's

reasons for not selecting him were pretext for age, sex, or disability

discrimination.<2>

In any proceeding, either administrative or judicial, involving an

allegation of intentional discrimination under Title VII, the ADEA, or

the Rehabilitation Act, it is the burden of the complainant to initially

establish that there is some substance to his or her allegation. In order

to meet this burden, the complainant must establish a prima facie case

of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973); Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

This means that the complainant must present a body of evidence such that,

were it not rebutted, the trier of fact could conclude that unlawful

discrimination did occur.

The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory explanation for its action. Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). An agency meets its

burden of production if it introduces evidence sufficient to allow the

trier of fact rationally to conclude that the agency's action was not

based on unlawful discrimination. Burdine, 450 U.S. at 257. Once the

agency has articulated such a reason, the question becomes whether the

discrimination proffered explanation was the true reason for the agency's

action, or merely a pretext for discrimination. St. Mary's Honor Center

v. Hicks, 509 U.S. 502 (1993).

The complainant can demonstrate pretext either directly, by showing that

discriminatory reasons more likely motivated the agency, or indirectly,

by showing that the employer's proffered explanations are unworthy

of credence. In St. Mary's Honor Center v. Hicks, the Supreme Court

held that a fact finder is not required, as a matter of law, to find

discrimination whenever it finds that the employer's explanation is

not credible. The Court further made clear that a fact finder may find

discrimination in such circumstances. The critical factor is that a fact

finder must be persuaded by the complainant that it was discrimination

that motivated the employer to act as it did. According to the Court,

it is not sufficient to disbelieve the employer; the fact finder must

believe the plaintiff's explanation of intentional discrimination.

Id. at 519. In a non-selection case, pretext may be demonstrated in a

number of ways, including a showing that appellant's qualifications are

observably superior to those of the selectee. Vanek v. Department of the

Treasury, EEOC Request No. 05940906 (January 16, 1997); Bauer v. Bailor,

647 F.2d 1037, 1048 (10th Cir. 1981).

Although the initial inquiry in a discrimination case usually focuses on

whether the complainant has established a prima facie case, following

this order of analysis is unnecessary, where, as here, the agency has

articulated a legitimate, nondiscriminatory reason for its actions.

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether he has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. U.S. Postal Service Board of

Governors v. Aikens Aikens, 460 U.S. 711, 714-717 (1983). Consequently,

the factual inquiry can proceed directly to the ultimate issue of

whether complainant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. See, Aikens

at 713-714 (1983); Washington v. Department of the Navy, EEOC Petition

No. 03900056 (May 31, 1990); Hernandez v. Department of Transportation,

EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of

Health and Human Services, EEOC Request No. 05900467 (June 8, 1990).

Although the burden of production, i.e., "going forward," may shift,

the burden of persuasion, by a preponderance of the evidence, remains

at all times on the complainant. Burdine, 450 U.S. at 256. In this

case, the Commission finds that the agency has articulated a legitimate,

nondiscriminatory reason for its actions; namely, that the complainant

was not the best qualified candidate.<3>

The vacancy announcement for the supervisory workers' compensation claims

examiner position contained the following duties and responsibilities

for the supervisory claims examiner: (1) supervises the activities

and responsibilities of adjudicating workers' compensation claims; (2)

determines priorities of case work and effects appropriate assignments

of claims unit personnel; (3) conducts quality control review of

subordinate's work for appropriate development and proper application

of the law; (4) maintains verbal and written liaison with members of the

outside public such as attorneys and union officials on individual case

problems; (5) prepares performance reports, identifies training needs,

authorizes leave and resolves problems for all personnel assigned to

the unit; and (6) participates with the District Director in devising

plans, work improvement programs and implementing the Office of Workers'

Compensation Programs (OWCP) directives.

The vacancy announcement also noted that applicants meeting the minimum

qualification requirements for the position may be further evaluated

against other job related factors to determine who would be referred

to the SO. Rating and ranking of candidates to determine the best

qualified would be accomplished by comparing the candidate's knowledge,

skills and abilities against those of other eligible candidates for

each of the five evaluation factors which included the following: (1)

knowledge of the development, examination, investigation, adjudication

of payment of claims for disability and death claims; (2) thorough

knowledge of the laws, regulations, policies and procedures of Federal

Employees Compensation Act and its administration; (3) ability to exercise

skill and tact in interpersonal relationships in dealing with program

participants and interested parties at all levels; (4) ability to plan,

organize and coordinate work to meet program goals and objectives; and

(5) ability to present ideas and concepts in a clear, concise written

manner. Evaluation factors (1), (2) and (4) were considered the

most important factors. The vacancy announcement also disclosed that a

candidate's experience, training, awards and performance appraisal would

be considered in the evaluation process. Candidates for the position

were to be interviewed by the selecting official.

The record reveals that the selectee was in her twenties at the time of

the selection. Her application for the supervisory position reflects

that she received her college degree in 1992 with honors. In February

1994, she was hired by the agency and began work as a claims examiner.

The complainant's application is also a part of the record and it reveals

that the complainant was a 1971 college graduate who received an advanced

degree in public administration in 1972. He has also taken courses for

credit in law and accounting. He began working for the agency in June

1978 as a claims examiner. He acted in the position of a supervisory

claims examiner, GS-12, from April to July 1982, from February 1986 to

May 1986 and from November 1994 to March 1995. The complainant became

a senior claims examiner in 1989. The complainant's applications lists

in detail awards and honors he has received, dating back to high school,

and training he has taken from 1974 to September 1996.

Concerning performance evaluations, the record reveals that the

complainant's evaluation for 1996-1997 year was rated fully successful

and that the selectee received an outstanding evaluation. The SO was

not the rater of record for the evaluations of either the selectee or

the complainant.

The record contains the affidavit of the SO who was also the District

Director of the Cleveland OWCP District Office. Therein, he stated that

he began working for the Cleveland District Office in December 1995,

having held the same position in Boston from July 1989. He denied having

any knowledge that the complainant was involved in any EEO activity,

prior to the filing of the instant complaint. Therein, he stated that

in making his selection, he used the five evaluation factors and also

considered the applicants' experience, training, awards, performance

evaluations and his own observation.

Regarding factor (1), the SO stated that while the complainant had

extensive work experience related directly to the position, based on

their recent performance evaluations, the complainant had acceptable

skills and the selectee's skills were exceptional, though she lacked the

experience of the complainant. He also noted that in the complainant's

May 1997 evaluation which covered the previous year, the complainant's

supervisor found that complainant's actions on cases were correct 81

percent of the time and the minimum acceptable standard was 80 percent.

However, in standards measuring the performance of the selectee regarding

the quality of her adjudications, she never performed below 91 percent.

Regarding factor (2), the SO believed the complainant and the selectee

were equally knowledgeable regarding applicable laws, regulations and

procedures and that the complainant's experience as a GS-12 senior claims

examiner did not necessarily mean that he had unchallenged superiority

over the selectee. The SO noted that the core competencies of a GS-12

claims examiner position were not significantly different from those

of the GS-11 claims examiner position and that the difference in grade

related to the level of oversight required, performing reconsiderations

in disputed cases and conducting informal conferences. The SO stated

that he believed that the selectee was capable of performing independent

work and had the ability to learn how to evaluate reconsiderations,

conduct conferences and manage overpayments. He noted that he was less

confident of the complainant's ability to perform independently, citing

an incident in July 1997, when the complainant had taken a leadership

role regarding the day-to-day activities of the unit but had to approach

the SO about simple adjudication and development concepts that the SO

believed that even a GS-11 claims examiner would understand. He stated

that while the complainant's experience was extensive and that he had

more exposure to various laws, policies and procedures, the complainant's

length of experience was not reflected in the depth of his understanding

of concepts.

Regarding factor (3), the SO found that the complainant was deficient

and particularly weak in the area of interpersonal relationships.

He noted that in August 1997, he counseled the complainant on his use

of inflammatory and provocative rhetoric.<4> The SO also cited a July

1996 decision of the complainant that was argumentative and insulting and

required that the Office prepare a letter to the recipient's Congressman

which had to defend the tone of the complainant's decision. The SO also

noted that in 1991, the complainant received a counseling Memorandum

from his supervisor regarding offensive and insulting letters that he

had written and the complainant's response was to continue to assert

that the letters were appropriate. The office had to apologize for

the letters. The SO noted that the selectee excelled in the area of

interpersonal relationships and stated that he had reviewed unsolicited

comments from workers' compensation claimants and others relating to

their appreciation of the selectee while the complainant had repeatedly

failed to show a problem-solving orientation, instead relying on being

combative and abrasive.

Regarding factor (4), the SO felt that both the complainant and the

selectee met the basic expectations. He noted that neither's ability was

superior, although he noted that the complainant had more opportunities

to demonstrate this ability and had had more examples of success.

Regarding factor (5), the SO stated that the complainant was inferior

to the selectee and again referenced the argumentative letters that the

complainant had written. The SO stated that both had demonstrated an

ability to organize and plan their work and that neither was markedly

superior in this evaluation factor, although the complainant had

demonstrated his ability over time and had more examples of success.

He stated that the complainant's written communication skills were

inadequate for the role of a supervisory claims examiner and that the

selectee had good written communication skills.

Concerning the use of the performance evaluations in making his selection,

the SO stated that he used the performance evaluations to help weigh

the ability of the applicants in areas critical to their successful

performance and where the evaluations assessed similar tasks and

abilities, he used them to compare the applicants. The most important

categories to the SO in the performance evaluations were those categories

related to the quality of adjudications and case decisions.

The SO noted that the complainant had received more extensive

training and had received more awards and commendations than the

selectee and had demonstrated a willingness to participate in many

activities that benefitted the office. Nonetheless, the SO believed

that the complainant's abilities and experiences were not sufficient to

overcome the serious deficiencies in areas relating to customer service.

He noted that the issue of trust arose during informal discussions

that he had with supervisory claims examiners regarding a selection to

the disputed position. He stated that complainant's potential peers

expressed distrust of the complainant with confidential information and

in his ability to accept criticism and that the supervisors reported that

in future meetings they would not be candid. The SO noted that one of

the duties of the supervisory claims examiner would be to participate

with him in devising plans, work improvement programs and implementing

OWCP directives and that as a manager he relied on good communications

with his supervisors.

In his affidavit, the SO stated that being a senior claims examiner was

not a prerequisite for the selection to the supervisory claims examiner

position, noting that three of the current supervisory claims examiners

did not have experience as senior claims examiners and that their

performance had not suffered and, also, that they ably supervised the

work of senior claims examiners. He also noted that a GS-12 supervisor

received closer guidance and review from the District Director.

Regarding pre-selection, the SO stated in his affidavit that he could

have appointed the selectee to act in the vacant position for 90 days

had he been interested in engaging in a pre-selection. Instead, he

advertised the position.

Regarding the complainant's claim that the Cleveland Office engaged in sex

discrimination, the SO testified that the large majority of applicants for

the positions of claims examiners were women. He noted that the male to

female ratio in supervisory claims examiner positions (one out of six)

and senior claims examiner positions (three out of eleven) was roughly

approximate to the ratio that existed in the then current composition

of the Cleveland office.

Because the agency has proffered a legitimate, nondiscriminatory reason

for the alleged discriminatory events, complainant 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). The complainant can do this by showing

that the agency was motivated by a discriminatory reason.

In attempting to meet his burden, the complainant reiterated contentions

that he has raised throughout the processing and investigation of

his complaint. He maintained that the Cleveland District Office

discriminated against the hiring and promotion of males and it was

only concerned with fairness when it related to females or minorities.

He asserted that the selectee was not qualified for the supervisory

position while he was excellently qualified.

He noted that a claims examiner is inherently unqualified for the position

of a supervisory position and that only senior claims examiners possess

the training knowledge and full qualifications to become supervisory claim

examiners. He stated that claims examiners did not work independently

and lacked any training or full work experience or knowledge required to

be a supervisor and that every claims examiner is assigned to a senior

claims examiner. He noted that the selectee would not be able to

identify training needs for senior claims examiners because she had no

background in work as a senior claims examiner. He stated that because

only senior claims examiners possess the training, experience and full

qualifications for the position of a supervisory claims examiner, that

was the reason that all supervisory claims examiners in the Cleveland

Office with the exception of one, held the position of a senior claims

examiner prior to becoming supervisor. The complainant also asserted

that the selectee was pre-selected.

The complainant challenged the samples of his work chosen by the SO and

his supervisor as not being random or truly reflective of his usual work

and questioned the validity of the SO's concern regarding his alleged

weakness in the area of interpersonal relationships. He stated that

his performance evaluation contradicted the SO's claim that he was weak

in personal relationships, noting specifically his 1996-1997 performance

evaluation, wherein his supervisor stated that he �generally demonstrates

good judgment and professionalism� when dealing with others. He also

challenged the SO's assessment that he was not knowledgeable in the law,

noting that he had acted as a supervisory claims examiner, had mentored

new claims examiners and reviewed their work, implemented innovative

ideas and, in contrast to the selectee, had handled all types of claims

and was given more complex cases as a senior claims examiner.

The complainant also stated that his qualifications for the disputed

position were superior to those of the selectee, noting his prior

supervisory details and appointments including acting as a supervisory

claims examiner, academic credentials, job experience before working

for the agency, teaching and training experience, including the training

of claims examiners, and his technical expertise.

Regarding prior EEO activity, the record contains a handwritten log of

events that the complainant recorded in February 1991. In a February 12,

1991 entry, the complainant stated that he contacted the EEO office and

spoke with an EEO Counselor in the Chicago office regarding an incident

concerning a February 8, 1991 Memorandum written by a supervisory claims

examiner that made references to the complainant.<5> The record also

contains a February 11, 1991 Memorandum from the complainant to the

Regional Director concerning the February 8, 1991 Memorandum and therein

the complainant indicated that pursuing the EEO process would be one

of the options he could consider. The SO stated in his affidavit that

he was not aware that the complainant had been involved in prior EEO

activity. There is no other evidence of participation by the complainant

in any EEO activity between that time and the time when he filed the

present complaint.

After a careful review of the record and considering all of the arguments

raised by the complainant, we find that the complainant was unable

to establish by a preponderance of the evidence that the agency's

explanation for his non-selection was a pretext for discrimination.

We agree with the agency's conclusion that the complainant failed to

demonstrate that more likely than not, discriminatory animus motivated

the complainant's non-selection. In this regard, we also find that

the complainant failed to demonstrate the requisite causal connection

between his EEO activity in 1991 and his not being selected for the

vacancy in 1997. The complainant did not show that the SO was aware

of his previous and remote EEO activity. In reaching our conclusions,

we note that the evidence fails to demonstrate that racial animus more

likely than not motivated the complainant's non-selection. While the

Commission recognizes that the complainant has had many more years of

experience than the selectee, has acted in the capacity of a supervisory

claims examiner and has had extensive training, the Commission is not

persuaded that the agency's selection was based on discrimination.

Greater years of experience do not necessarily make an individual more

qualified for a particular position. McGettigan v. Department of the

Treasury, EEOC Appeal No. 01924372 (February 24, 1993). Nor do years of

experience automatically make one candidate more qualified than another.

Ford v. Department of Health and Human Services, EEOC Appeal No. 01913521

(December 19, 1991).

Although complainant's qualifications are impressive, Court and

Commission precedent have consistently held that when there are equally

desirable candidates and, absent discrimination, a trier of fact should

not substitute his judgment for the legitimate exercise of managerial

discretion. See Bauer v. Bailor, 647 F.2d at 1048. The Commission also

recognizes that the use of subjective criteria may have been among the

reasons the SO chose the selectee in the instant case. The Commission

has recognized that the use of subjective criteria may offer a convenient

pretext for unlawful discrimination. Wilson U. S. Postal Service, EEOC

Request No. 05921062 (August 12, 1993). On the other hand, subjective

criteria are frequently relied upon in promotions to supervisory or

management positions, and the use of such criteria is not, in and of

itself, an indicator of discriminatory motivation. Podale v. Department

of Health and Human Services, EEOC Request No. 05960344 (October

16, 1998). Subjectivity in the selection of a manager is inevitable

because the qualities of a good manager are not readily susceptible to

quantification.

The complainant also contends that the selectee was pre-selected. The

Commission does not so find. While pre-selection may serve to discredit

the reason given for the selection decision, in the absence of evidence

establishing that it was based upon a basis prohibited by Title VII,

it is not tantamount to discrimination. Nickens v. National Aeronautics

and Space Administration, EEOC Request No. 05950329 (February 23, 1996);

Jenkins v. Department of the Interior, EEOC Request No. 05940284 (March

3, 1995). The complainant must still prove that the pre-selection was

based on discrimination. Hawkins v. Secretary of Navy, EEOC Request

No. 05960883 (March 5, 1998).

Investigatory Bias

The Commission also notes that on appeal, the complainant contends that

the investigator who investigated his complaint was biased. He noted

that while the investigator had communicated with him (the complainant)

only through correspondence, he made a special trip to Cleveland to meet

with the SO and his supervisor, without informing him. He further stated

that the investigator did not introduce himself or speak to him until

he sent him an urgent written message. Then the investigator informed

him that he had whatever information that he needed from the complainant

and that he saw no need for any further information from the complainant.

We find no evidence in the record that would demonstrate that the

investigator was biased or that the investigation was improperly

conducted. Even assuming that the investigator chose a different

approach in obtaining information from the complainant than he did from

the agency officials, this action by the investigator does not necessarily

show bias. The complainant has not demonstrated how he was harmed

by the investigator's alleged face-to-face meeting with the SO and the

complainant's supervisor and the investigator's choice to work with

the complainant only through written communication. The complainant

was informed in a May 21, 1998 letter from the investigator that once

his complaint file was reviewed, he would be furnished a copy for

his review and that thereafter he could submit additional responses

and rebuttal concerning the agency's articulated reason for the

non-selection. The record reflects that the complainant was asked by

the investigator in a Complaints Data Request form to provide answers

to questions posed by the investigator. The last question offered

the complainant the opportunity to provide any information relevant

to the accepted issue of the complaint. In response to the Complaints

Data Request, the complainant submitted an extensive and comprehensive

affidavit, accompanied by numerous attachments to the investigator.

The complainant also responded to the affidavits of the SO and the

supervisor, describing in exhaustive detail his objections to statements

made in their affidavits and the record in general. Accordingly,

the Commission finds no evidence that would support a finding that the

complaint was improperly investigated or that the investigator was not

impartial in conducting his investigation of the complaint. Moreover,

the Commission notes that the complainant expressed the belief that

the agency had failed to submit, as part of the appeal record, all

of the correspondence and documents that he submitted to the agency.

The complainant himself submitted a copy of what he determined was the

complete record of his complaint for the Commission's review.

Accordingly, based on the record and all arguments, not specifically

addressed herein, and consistent with our discussion, we AFFIRM the

final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

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:

March 17, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2The Commission notes that the agency apparently inadvertently omitted

the finding regarding reprisal discrimination.

3The Commission notes that the agency's burden of production is not

a heavy burden. The agency need not, at this point, present evidence

sufficient to establish its actual motivation. Rather, the agency need

only present evidence sufficient to raise a genuine issue of material

fact as to whether it discriminated against appellant. Burdine, 450

U.S. at 254.

4The August 1997 Memorandum to the complainant is contained in the

investigative file and reflects that the complainant was counseled

regarding the tone and content of his correspondence and advised that by

unnecessarily antagonizing workers' compensation claimants, the agency's

job was made more difficult.

5The Commission notes that in his affidavit the complainant denied any

previous participation in the EEO process, although in answer to the

same question, he also mentioned the February 1991 incident.