01A22092_Anderson
03-13-2003
Willie C. Anderson, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Willie C. Anderson v. Department of the Treasury
01A22092
March 13, 2003
.
Willie C. Anderson,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A22092
Agency No. 014066
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. Sec. 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Sec. 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. Sec. 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Education Services Specialist at the agency's Internal
Revenue Service facility in Overland Park, Kansas. Complainant sought
EEO counseling and subsequently filed a formal complaint on December 4,
2000, alleging that he was discriminated against on the bases of race
(African-American), sex (male), religion (Christian), age (D.O.B. July 2,
1948), and reprisal for prior EEO activity when the agency 1) assigned
him clerical work in lieu of his regular duties and 2) failed to provide
complainant with developmental and training activities.
The agency accepted the complaint and conducted an investigation. At the
conclusion of the investigation, complainant was informed of his right to
request a hearing before an EEOC Administrative Judge or alternatively, to
receive a final decision by the agency. When complainant failed to request
a hearing within the time period specified in 29 C.F.R. Sec. 1614.108(f),
the agency issued a final decision. In its FAD, the agency concluded that
complainant had failed to prove that he had been discriminated against.
From the FAD complainant brings the instant appeal.
Issue 1 (Assignment to Clerical Duties)
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may
be dispensed, however, where the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department
of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, the agency explains that complainant was assigned clerical duties
because the employee in complainant's group who had provided clerical
services to the group retired and was not replaced. As a result all
employees in the group were assigned some clerical duties. At the time,
complainant's group was undergoing a reorganization and was not initiating
new projects. Those employees who were not involved in ongoing projects,
including complainant, performed more clerical duties than others.
This is a legitimate nondiscriminatory reason for the agency's actions.
Complainant attempts to demonstrate that this explanation is a pretext
designed to conceal discrimination by pointing out that a female employee
was assigned new non-clerical work during the relevant period that could
have been assigned to him. The agency acknowledges that new work was
assigned to this employee. It explains that the work was not assigned
to complainant because he was not as well qualified to perform the work
as was the female employee. Complainant disputes this but the weight
of the evidence supports the agency's position. Complainant has not
proven the agency's explanation to be pretextual.
Issue 2 (Failure to Provide Developmental and Training Activities)
Complainant has failed to establish a prima facie case of disparate
treatment discrimination or retaliation. He attempts to raise an
inference of disparate treatment discrimination by showing that two
female employees in his office received training that he was denied.
It is well established that in order for comparative evidence relating
to other employees to be considered relevant, all relevant aspects of
the employees' work situation must be identical or nearly identical,
i.e., that the employees report to the same supervisor, perform the
same job function, and work during the same time periods. See Stewart
v. Department of Defense, EEOC Appeal No. 01A02890 (June 27, 2001);
Jones v. United States Postal Service, EEOC Appeal No. 01983491 (April 13,
2000); Hunter v. United States Postal Service, EEOC No. 05960762 (October
1, 1998). Here, the comparators whom complainant identifies worked for
a different supervisor than he. The fact that they received training
that complainant did not gives no support whatever to complainant's
claim of disparate treatment discrimination.
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).
Here complainant has failed to establish a nexus between his prior
protected activity in 1998 and the denial of training in 2000.
The Commission has held that a nexus may be inferred if the protected
activity and the adverse action occurred within one year of each
other. See Patton v. Department of the Navy, EEOC Request No. 05950124
(June 27, 1996). In the instant case, the length of time between the
protected activity and the allegedly retaliatory action is well beyond
a year and there is no other evidence to support a causal connection.
The passage of that much time following the protected activity negates any
inference that denial of training was caused by the protected activity.
For the foregoing reasons, the agency's final decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days
of receipt of another party's timely request for reconsideration. See
29 C.F.R. Sec. 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. Sec. 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. Sec. 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 13, 2003
__________________
Date