Barbara Owens, Petitioner,v.Louis Caldera, Secretary, Department of the Army Petition No. 03A00112 MSPB No. CH-0752-97-0394-B-1

Equal Employment Opportunity CommissionOct 26, 2000
03a00112 (E.E.O.C. Oct. 26, 2000)

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.