01974053
10-29-1999
Donzaleigh D. Frazier, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Donzaleigh D. Frazier, )
Appellant, )
) Appeal No. 01974053
v. ) Agency No. AT-9401
)
Andrew M. Cuomo, )
Secretary, )
Department of Housing and Urban )
Development, )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
her allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal is accepted
by the Commission in accordance with the provisions of EEOC Order
No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether appellant has established that the
agency discriminated against her based on race (Black) and sex when it
did not upgrade her into the position of Computer Systems Analyst, GS-11.
BACKGROUND
Appellant filed a formal complaint in October 1993 in which she raised
the issue identified above. Following an investigation, appellant
did not request an EEO administrative hearing and the agency issued a
final decision in March 1997 finding no discrimination. It is from this
decision that appellant now appeals.
During the period in question, appellant was employed as a Management
Information Specialist, GS-09, at the agency's facility (the Facility)
in Memphis, Tennessee. The record reveals that, in early 1992, a
Local Area Network (LAN) was installed in the Facility. As a result,
appellant's duties increased to a point where she believed she was
entitled to an upgrade into a GS-11 Computer Systems Analyst position.
Appellant thereafter approached the Facility's Director (the Responsible
Official, RO) and requested to be upgraded.
According to the RO, at the time appellant requested the upgrade he
was not sure whether such a position was authorized for the Facility.
Although it is not apparent when the RO determined that this authorization
existed, he stated that, at the time appellant became eligible for
promotion to the GS-11 level in October 1992,
budget considerations prevented him from recommending her for an upgrade.
Specifically, the RO explained that the budget he received for Fiscal
Year 1993 indicated that the Facility was projected to be over budget
for salaries and expenses. The RO stated that, for that reason, he
did not believe it was appropriate to recommend anyone for promotion.
Thereafter, an agency-wide freeze was placed on promotions between
February and July 1993. According to the RO, soon after the freeze was
lifted appellant's name was submitted for the upgrade of her position.
The record contains a copy of the request, which is dated July 29, 1993.
Appellant's upgrade to the GS-11 level went into effect on October
3, 1993.
Appellant testified that, when she made her request for the upgrade to the
RO, he told her that it would have to be initiated by the Regional Office.
Appellant contends that this information was wrong, and that the RO
gave her erroneous information in order to discriminate against her.
In support of that position, appellant cites three employees who held
the same position as she at other facilities who were upgraded before
she was.<0> Appellant also states it is suspicious that the request
to upgrade her position was submitted at the same time she initiated
EEO counseling.
ANALYSIS AND FINDINGS
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. Appellant has the initial burden
of establishing a prima facie case of discrimi-nation. If appellant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Appellant must then prove, by a prepon-derance of the evidence, that
the legitimate reason articulated by the agency was not its true reason,
but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Initially, we find appellant has not established a prima facie case
based on either race or sex because she has not demonstrated that she
was treated differently than a similarly situated nonmember of her
protected groups. See Smith v. Monsanto Chemical Co., 770 F.2d 719, 723
(8th Cir. 1985). In so finding, we conclude that, because the three
comparatives were not under the supervision of the RO and worked in
different facilities than appellant, she was not similarly situated
to them. Id. Furthermore, although comparative evidence is only one
method of establishing a prima facie case, appellant has not presented
any other evidence sufficient to support an inference of either race
or sex discrimination. See O'Connor v. Consolidated Coin Caters Corp.,
517 U.S. 308 (1996); Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981).
Assuming appellant could establish a prima facie case, the Commission
finds that the agency has articulated legitimate, nondiscriminatory
reasons for the challenged action. Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 254 (1981). Specifically, the RO explained
that the primary reason appellant was not immediately upgraded was
because of budget constraints.
At this point, appellant bears the burden of establishing that the
agency's articulated reason is a mere pretext for discrimination.
Appellant can do this either directly, by showing that a discrimi-natory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at 256.
In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme
Court held that a fact finder is not required, as a matter of law, to
find discrimination whenever it finds that the employer's explanation is
not credible. The Court further made clear that a fact finder may find
discrimination in such circumstances. The critical factor is that a fact
finder must be persuaded by the complainant that it was discrimination
that motivated the employer to act as it did. According to the Court,
it is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
Id. at 519 (emphasis in original).
Having considered appellant's various contentions, we find she has not
established pretext. Appellant's primary contention is that she was
intentionally misled by the RO by being told that he could not initiate
her upgrade. What is apparent from the RO's testimony, however, is that
he was aware of the procedure for requesting an upgrade but did not do
so because of budget constraints. We find appellant has not established
that this reason is unworthy of credence. Furthermore, although appellant
notes that the decision to promote her coincided with her initiation of
EEO counseling, it also coincided with the end of the agency's budget
freeze. In any event, we find this fact is insufficient to support a
finding of pretext. Accordingly, the Commission finds appellant has
not established that she was discriminated against as alleged.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the FAD and find appellant has
not established that the agency discriminated against her as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 29, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations 01 The promotions of these
three employees, all of whom are nonmembers of appellant's
racial group, went into effect in April 1991, October 1992,
and September 1993.