03a00108
01-09-2001
Darrell R. Lott, Petitioner, v. Louis Caldera, Secretary, Department of the Army, Agency.
Darrell R. Lott v. Department of the Army
03A00108
January 9, 2001
.
Darrell R. Lott,
Petitioner,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Petition No. 03A00108
MSPB No. DC-0351-98-0654-B-1
DECISION
On June 28, 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 his 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.<1> Petitioner,
a Target Devices Services Worker at the agency's facility in Fort Lee,
Virginia, alleged that he was discriminated against on the bases of
sex (male) and reprisal (prior EEO activity) when, on July 5, 1997,
petitioner was informed that his position had been abolished through a
Reduction-In-Force (RIF) action and, on July 21, 1997, the agency issued
another specific RIF notice containing an offer of assignment, in lieu of
separation, to the lower-graded position of Supply and Material Worker.
Petitioner filed a mixed case appeal with the MSPB. After a hearing,
the MSPB Administrative Judge (AJ) found that petitioner failed to
demonstrate that the agency's action was based on a discriminatory animus.
Petitioner filed a petition for review with the Board, however, his
petition was denied.
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 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).
A claim of disparate treatment is examined under the three-part analysis
first 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.
McDonnell Douglas, 411 U.S. 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 actions. 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).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether petitioner has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, in response to petitioner's claims of discrimination, the agency
presented evidence that it abolished petitioner's position and issued
petitioner an offer of reassignment for legitimate, nondiscriminatory
reasons. In particular, the agency demonstrated that it acted pursuant
to a RIF action. Due to projected shortfalls in funding, the agency
had to prioritize positions within its facility in the event of a
reorganization. As part of its prioritization, the agency determined
that duties performed by petitioner and another individual could be
shifted to another division, namely the Directorate of Logistics.
Based on the invocation of the RIF action, petitioner's position was
abolished and, later, the agency issued another specific RIF notice
which offered petitioner an assignment, in lieu of separation, to a
lower-graded position. Upon review of the record, we find that the agency
has articulated legitimate, nondiscriminatory reasons for its actions.
Since the agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden returns to the petitioner to demonstrate
that the agency's articulated reasons were pretext for discrimination.
We find that petitioner has failed to demonstrate that the agency's
reasoning was pretextual. Therefore, we find that the MSPB AJ correctly
determined that petitioner failed to establish that the agency's action
was based on a discriminatory animus.
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 (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
January 9, 2001
__________________
Date
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 petitioner, petitioner's representative
(if applicable), and the agency on:
__________________
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 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.