03a40016
12-11-2003
Barbara Richardson, Petitioner, v. Ann M. Veneman, Secretary, Department of Agriculture, (Agricultural Research Service), Agency.
Barbara Richardson v. Department of Agriculture
03A40016
December 11, 2003
.
Barbara Richardson,
Petitioner,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
(Agricultural Research Service),
Agency.
Petition No. 03A40016
MSPB No. DC-0752-03-0473-I-1
DECISION
On October 18, 2003, 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
her 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 Secretary (Office Automation), GS-0318-05, alleged that
she was discriminated against on the basis of reprisal when she was
removed from the agency, effective December 30, 2002.
On January 27, 2003, petitioner filed a mixed case appeal with the MSPB.
After a hearing, the Administrative Judge (AJ) found that petitioner was
not discriminated against as alleged. Specifically, the AJ found that
four of the five reasons given by the agency for petitioner's removal
were sufficient to support the agency's action. Petitioner did not seek
a review of the AJ's decision from the Board.
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. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell Douglas
Corporation v. Green. 411 U.S. 792 (1973). For petitioner 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. Id. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the petitioner 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.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Although the initial inquiry in a discrimination case usually focuses
on whether the petitioner has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
legitimate, nondiscriminatory reasons for its action. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the petitioner has
established a prima facie case to whether she has demonstrated by a
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). Here, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its action. Specifically,
the agency stated that petitioner was removed from the agency for
exhibiting disrespect toward her supervisor, failing to follow the
proper procedures for requesting leave, failing to follow supervisory
instructions, uncooperative behavior, and being absent without leave.
Because the agency has proffered a legitimate, nondiscriminatory reason
for the alleged discriminatory event, petitioner now bears the burden of
establishing that the agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Petitioner 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
petitioner has failed to meet this burden. The only evidence, other than
her own testimony, offered by petitioner to prove pretext is testimony
from her former EEO representative who stated that in his opinion, the
removal action might have been in retaliation for petitioner's prior
EEO activity. But the representative's mere assertions, without more,
is not sufficient to prove pretext. We note that the MSPB AJ did not
sustain the charge of being absent without leave, but then went on to
find that the other reasons given by the agency were sufficient to support
the removal, and not evidence of discrimination. This Commission agrees.
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the final decision
of the MSPB finding no discrimination. 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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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
December 11, 2003
__________________
Date