Antoinette McGirt, Complainant,v.William S. Cohen, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionMay 18, 2000
01974261 (E.E.O.C. May. 18, 2000)

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.