01990625
03-20-2000
Alfreda Muhammad, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Alfreda Muhammad v. Department of Veterans Affairs
01990625
March 20, 2000
Alfreda Muhammad, )
Complainant, )
)
v. )
) Appeal No. 01990625
Togo D. West, Jr., ) Agency No. 97-0265
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
On October 28, 1998, complainant timely filed an appeal with the
Commission from a final agency decision (FAD) pertaining to her complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The
Commission accepts the appeal in accordance with EEOC Order No. 960.001.
The record reveals that during the relevant time, complainant was employed
as the Secretary to the Chief of Pathology and Laboratory Medicine
Service, GS-5, at the agency's VA Medical Center in St. Louis, Missouri.
Complainant alleged that from September 1993 through November 1996 she was
allegedly treated differently than white male employees. Specifically,
complainant contends that management has treated a white male employee
more favorably than black female employees with respect to tardiness,
time at work, and compensatory time. Believing she was a victim of
racial (Black) and sex (female) discrimination, complainant sought EEO
counseling. Subsequently, she filed a complainant dated November 13,
1996. Following an investigation of the complaint, the file was forwarded
to the agency for a FAD after complainant failed to request a hearing.
The agency issued a FAD finding that complainant had not established
that she had been discriminated against. The agency determined that
complainant failed to present a prima facie case disparate treatment based
on race or sex since the white male employee (GB) cited by complainant
for comparison is not "similarly situated." According to the agency,
although GB has the same supervisor as complainant, he has a different job
with different responsibilities. The agency determined that complainant
did not establish a prima facie case because she failed to show she
was the object of an adverse employment action. Moreover, the agency
stated that complainant did not show a causal connection between the
alleged actions and her race or sex. The FAD went concluded that the
agency had articulated a legitimate nondiscriminatory reason for its
actions. Specifically, the agency noted that complainant worked more
closely for the RMO than GB; and that GB was required to use annual leave
for his tardiness. The agency further noted that after management
noticed complainant's untimeliness, she and the other clerical employees
were told to arrive at work on time; and that when complainant was late,
she was not required to use leave. The agency determined that complainant
did not present any evidence of pretext, and found no discrimination.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. See Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary's Honor
Cen. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
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 9, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, in response to complainant's claims of discrimination, the
agency argued that any differences in treatment between complainant
and the white male were based on the differences in their jobs and
responsibilities: GB functions as the Automated Data Processing (ADP)
Coordinator in Pathology and Laboratory Services and is responsible for
all the terminals, printers, and ADP equipment used in the laboratory;
in contrast, complainant, as a secretary, is responsible for answering
the phone. The RMO noted that untimeliness has been a problem in the
lab, and that it is especially important for the clerical staff to
be on time since their duties include answering the phone. Moreover,
the RMO noted that the untimeliness of GB was not ignored; that when
the RMO noticed GB's lateness, she spoke to him about it several times
and made him use annual leave. The Commission finds that the record
supports the agency's argument.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason was a pretext for discrimination.
Complainant, however, has failed to present any evidence of pretext.
Therefore, the agency's determination that complainant failed to establish
that she was discriminated against was correct.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's 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 20, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________ __________________________________
DATE
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.