supported by substantial evidence in the record

supported by substantial evidence in the record

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”  Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted).  A finding regarding whether or not discriminatory

intent existed is a factual finding.  See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).  An AJ’s conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

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).  Complainant

must initially establish a prima facie case by demonstrating that he or

she 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).  Proof of a prima facie case will

vary depending on the facts of the particular case.  McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions.  Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).  To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency’s explanation is pretextual.  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).

Complainant can establish a prima facie case of reprisal 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).