Alfreda Muhammad, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 20, 2000
01990625 (E.E.O.C. Mar. 20, 2000)

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.