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.