01970422
03-08-2000
Donna Parker, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Donna Parker v. Department of the Navy
01970422
March 8, 2000
Donna Parker, )
Complainant, )
) Appeal No. 01970422
v. ) Agency No. 94-00181-013
) 94-00181-044
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning her complaint of unlawful employment discrimination on the
bases of sex (female) 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. 36,644, 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-reference bases when she,
as a permanent on-call employee, was not recalled to duty.
BACKGROUND
Complainant, employed by the agency as a Pipefitter, WG-10, filed
two formal complaints, one on March 15, 1994, the other on September
2, 1994. In the first complaint, she claimed that she was subjected
to sex discrimination and reprisal when she was not recalled to duty
as a permanent on-call employee in December 1993. In the second one,
she alleged that she was subjected to reprisal when, on July 25, 1994,
the agency once again failed to recall her to duty as a permanent on-call
employee. After accepting both complaints for processing, the agency
consolidated them pursuant to the Commission's federal sector regulations.
See 29 C.F.R. � 1614.606. At the conclusion of the investigation, a
final agency decision was issued finding no discrimination. This appeal
followed.
The evidence of record indicates that the facility at which complainant
worked experienced a major reduction in force (RIF) in October 1993.
As a result, a number of employees, including complainant, were designated
as on-call employees. The goal was to allow the on-call employees to
work when the workload was sufficient and to separate them when the
workload decreased. With each assignment, the agency tried to provide
the on-call employees with six months of work.
The Pipefitting Shop Head, the person charged with recalling employees
on an as-needed basis, indicated that he recalled approximately 35
Pipefitters in December 1993. According to him, he used the "seniority by
check number" method, approved by the Group Superintendent and discussed
with the chief union steward, to determine which employees were called in.
That method gave preference to those employees who had been permanent
employees originally and, as a result of the RIF, had accepted positions
on an on-call basis. The Shop Head stated that complainant was not
recalled because he did not reach her name on the recall list.<2>
In July 1994, the agency experienced another increase in workload.
As such, the Shop Head recalled approximately 40 employees. Just like
in the first instance, the "seniority by check number" method was used
in determining who would be recalled. Again, the Shop Head did not
reach complainant's name on the list.
ANALYSIS AND FINDINGS
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 complainant to
prevail, she 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; Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass), affirmed, 545 F.2d 222 (1st Cir. 1976); 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 complainant 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).
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 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).
In this case, the Commission finds that the agency has articulated a
legitimate, nondiscriminatory reason for its action. Specifically,
the agency stated that complainant was not recalled to duty because
employees with more seniority were given priority.
Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory events, complainant now bears
the burden of establishing that the agency's stated reason is 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 this burden. In attempting
to prove pretext, she argued that her five veteran points should have
been used as a factor in determining whether or not she was recalled.
But the file does not contain, nor does complainant submit, evidence
indicating that some employees benefitted from their status as veterans
while others did not. In addition, the complainant has not identified
employees outside of her protected groups with less seniority than she
that were called in to work. As such, we find that the complainant has
failed to produce evidence which indicates that, more likely than not, the
agency's articulated reason was merely an effort to mask discriminatory
animus.
CONCLUSION
Therefore, after a careful review of the 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 8, 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
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 In addition to calling in on-call employees, the Shop Head also
hired some temporary workers. The temporary workers, formerly permanent
Pipefitters who were affected by the RIF, had chosen to accept temporary
appointments rather than on-call appointments in order to retain their
severance benefits.