01974261
05-18-2000
Antoinette McGirt, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Antoinette McGirt v. Department of Defense
01974261
May 18, 2000
Antoinette McGirt, )
Complainant, )
) Appeal No. 01974261
v. ) Agency No. DIS-96-027-90-M
)
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning her complaint of unlawful employment discrimination on the
bases of race (African-American) 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.<1> 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 agency's final
decision.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
she was discriminated against on the above-referenced bases when she was
twice denied selection to the position of Research Team Assistant (RTA).
BACKGROUND
Complainant, formerly employed by the agency as an Intermittent
Team Assistant (ITA), filed a formal complaint on January 26, 1996,
in which she raised what has been identified as the issue presented.
The agency accepted the complaint for processing and, at the conclusion
of its investigation, issued a final decision finding no discrimination.
This appeal followed.
The evidentiary file reveals that, on January 6, 1995, the agency
initiated action to hire ten permanent intermittent (on-call) team
assistants (ITAs). Six individuals, including complainant, were
referred for the positions and hired by the Chief of Support (COS).
All six hirees were to be supervised by the Research Team Supervisor
(RTS or ITS supervisor). The RTS was charged with determining when each
ITA would begin his/her employment based upon the projects that she had
available. Later, she was responsible for assigning projects to the ITAs
based upon their availability and backgrounds. The complainant and two
other hirees, both White, began their employment on February 21, 1995.
Two other employees, both Black, began their employment on March 7, 1995.
The last hiree, White, began her employment on March 28, 1995. At the
time of the hirings and start dates, the COS and the RTS were unaware
of the races of the new employees.
In early May 1995, the COS received a status report from the RTS
regarding the number of hours that each ITA was working. From this
report, he determined that it would be more efficient for the agency to
hire one permanent full time research team assistant rather than having
six intermittents. On May 31, 1995, he informed the ITAs of his decision.
On June 7, 1995, complainant and one of the Black ITAs complained to
the EEO office that their White counterparts were receiving preferential
treatment. The two employees alleged that the White employees had private
offices while the Black employees worked in the back of what was once
closet space or a storage area. Additionally, they alleged that the
White employees were assigned more hours. This complaint was settled
by all involved parties on July 19, 1995. In the settlement agreement,
the agency agreed to reinstate complainant and allowed her to remain in
the ITA position under the same conditions as previously hired.<2>
The announcement for the full time permanent RTA position was open
from June 15, 1995 to June 26, 1995. On June 28, 1995, a referral
list containing the names of complainant and five White females was
given to the COS, the selecting official in this case. A White female
who had served as an ITA with complainant was selected. On July 28,
1995, another list was referred to the COS because the transfer of an
RTA created a vacancy. Again, a White female who had served as an ITA
with complainant was selected. The COS testified that both selections
were based upon recommendations from the RTS. The RTS testified that
her recommendations were based upon her observation that the two persons
selected were the two top performers. She also indicated that while she
had no problem with the quality of complainant's work, she did observe
that she (complainant) abused her telephone privileges and missed too
many days from work. The RTS also testified that, on a few occasions,
there were some discrepancies in what complainant told her.
After the selections, the subject of this decision, complainant contacted
the EEO office. She alleged that management's actions were racially
motivated. To illustrate discrimination, she accused the agency of
assigning more work hours and better office space to the White ITAs.
The RTS, the official charged with assigning work hours to the ITAs,
testified that she attempted to distribute the hours as equally as
possible, but, in doing so, she had to consider the expertise and
availability of each individual. Regarding office space, the ITA
supervisor testified that a common work area for all of the ITAs was
located in the back of the building. She did admit, however, that,
depending upon the work, some of the ITAs worked in other locations.
According to her testimony, the assigned office space was determined by
the work, not race.
In addition to race, complainant contends that the nonselections were
also motivated by reprisal. According to her, after she complained to
the EEO office about the working conditions, management cut her hours
and decided to terminate the ITA positions and replace them with RTAs.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
alleging discrimination is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973). See, Hochstadt
v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases). First, complainant must 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason proffered by the agency was a
pretext for discrimination. Id. at 256.
In order to establish a prima facie case of discrimination for a claim
of reprisal, complainant must show the existence of four elements:
(1) that she engaged in protected activity; (2) that the alleged
discriminating official was aware of the protected activity; (3) that
she was disadvantaged by an action of the agency contemporaneous with
or subsequent to such participation; and (4) that there was a causal
connection between the protected activity and the adverse employment
action. See, Hochstadt, Id., see also Mitchell v. Baldridge, 759 F.2d
80, 86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
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 when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether she has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the agency stated that complainant was not selected for the positions
because she abused her telephone privileges, missed too many days from
work, and, on occasion, provided information containing discrepancies.
The agency further stated that the two White employees were selected
because, as ITAs, they were the top two performers.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, complainant now bears the burden of
establishing that those reasons are merely a pretext for discrimination.
Shapiro v. Social Security Administration, EEOC Request No. 05960403
(December 6, 1996). Complainant can do this by showing that the agency
was motivated by a discriminatory reason. Id. (citing St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993)). We find that complainant has
failed to meet that burden. In attempting to prove pretext, complainant
stated that, as ITAs, White employees were given more work hours and
better office space than their Black counterparts. The Commission
notes that complainant previously filed an EEO complainant concerning
the distribution of hours and working space. That complaint was
settled by the agency in a settlement agreement dated July 19, 1995.
Complainant also stated that, even though she was retained as an ITA
per the settlement agreement, she was never called in to work after
June 9, 1995. Records submitted by her confirmed this assertion.
Of the evidence submitted by complainant, however, none of it disproves
or even addresses the agency's legitimate, nondiscriminatory reasons
(i.e., that complainant abused the telephone, missed too many days from
work, and provided discrepant information; and that the White selectees
performed better as ITAs than she did). For that reason, we find that
complainant failed to prove that the agency's stated reasons constituted
an effort to mask unlawful discriminatory animus.
CONCLUSION
Therefore, after a careful review of evidence of record, including
complainant's contentions on appeal, the agency's response thereto,
and arguments and evidence not specifically addressed in this decision,
we hereby AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 18, 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 Equal Employment Assistant
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.
2 The Commission notes that while complainant continued to be employed
by the agency on an on-call basis she was never called in to work after
June 9, 1995.