03a00112
10-26-2000
Barbara Owens, Petitioner, v. Louis Caldera, Secretary, Department of the Army Petition No. 03A00112 MSPB No. CH-0752-97-0394-B-1
Barbara Owens v. Department of the Army,
03A00112
October 26, 2000
.
Barbara Owens,
Petitioner,
v.
Louis Caldera,
Secretary,
Department of the Army
Petition No. 03A00112
MSPB No. CH-0752-97-0394-B-1
DECISION
On July 11, 2000, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final
Order issued by the Merit Systems Protection Board (MSPB) concerning
petitioner's claim of discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. Petitioner, a Contract Management Assistant at Fort Harrison,
Indiana, received a final removal notice from the agency on November
7, 1995. The petitioner filed a formal complaint of discrimination
alleging her removal was based on her race (African-American), color
(black) and in reprisal for prior protected activity. The agency issued a
final decision finding no discrimination on February 12, 1997. From that
final decision, the petitioner timely filed a mixed case appeal with the
MSPB on March 15, 1997. By order dated May 25, 1999, the MSPB remanded
the matter for a supplemental hearing. An MSPB Administrative Judge
(AJ) conducted the supplemental hearing and issued an initial decision,
finding that petitioner failed to establish that she was discriminated
against as referenced above. By agency final order dated June 1, 2000,
the MSPB denied petitioner's request to review the AJ's determination.
From this final order, complainant now appeals.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq.<1> The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
At the time petitioner was removed from service, she was pursuing
several EEO charges against the agency. In pursuit of these EEO charges,
petitioner implicated her first-line supervisor (RMO: Caucasian, female).
Petitioner maintains that RMO initiated the removal to discriminate and
to retaliate against her for making these previous charges. Specifically,
petitioner alleges that the agency removed her knowing that by cutting off
her livelihood it could delay the processing of her pending EEO complaints
and perhaps end the prosecution of those pending complaints altogether
while she struggled to find another means of economic survival.
The agency indicates that petitioner was removed from her position because
she intentionally misrepresented her educational plans on June 7, 1994,
in order to receive five months of leave-without-pay (LWOP). In finding
that complainant failed to establish discrimination and/or retaliation,
the AJ concluded that complainant was removed from her position because
she misrepresented material facts concerning her request for LWOP.
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 Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases). 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).
The agency proffered a legitimate, nondiscriminatory reason for the
challenged action; namely, that petitioner was removed for misrepresenting
facts concerning her request for LWOP. The record reveals on June 7,
1994, petitioner requested five months LWOP to attend school full time.
The agency granted petitioner's request. Petitioner requested the leave
for the purpose of attending college, representing that she planned
to do so on a full-time basis, when in fact, she took only one course
that semester, and it met for only fifty minutes, three times a week.
Petitioner failed to rebut the agency's assertion that she misrepresented
her LWOP request. The AJ found that petitioner failed to allege facts
that would show discrimination or disparate treatment.
The Commission finds that the MSPB's decision constitutes a correct
interpretation of the laws, rules, regulations, and policies governing
this matter and is supported by the evidence in the record as a whole.
For the foregoing reasons, it is the decision of the Commission to CONCUR
with the final decision of the MSPB finding no discrimination.
PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 26, 2000
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 29 C.F.R. Part 1614 where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.