03a00116
12-05-2000
Edward J. Thompson, Petitioner, v. Louis Caldera, Secretary, Department of the Army, Agency.
Edward J. Thompson v. Department of the Army
03A00116
December 5, 2000
.
Edward J. Thompson,
Petitioner,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Petition No. 03A00116
MSPB No. DE-0351-97-0562-B-1
DECISION
On July 20, 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> Petitioner, a GS-12 Employment Development
Specialist at the agency's Fitzsimons Army Medical Center, alleged that
he was discriminated against on the bases of race (Black), sex (male),
and age (50) when his position was abolished pursuant to a Reduction In
Force (RIF) action by the agency.
Petitioner was issued a RIF notice in February 1996, informing that his
position would be abolished effective February 28, 1997. Petitioner was
then issued a second RIF notice on December 6, 1996, informing that
his position would be abolished and that he would be separated from
Federal service effective April 26, 1997. In December 1996 or January
1997, petitioner met with the agency's Chief of Recruitment (Chief) in
order to request that his resume be included in his official personnel
folder (OPF). The Chief rejected petitioner's request stating that
the agency had set a deadline for updating OPFs and that the deadline
had long past. In February 1997, petitioner completed a Standard Form
(SF) 171 and submitted it to his supervisor for review and then to
Personnel for inclusion into his OPF. Petitioner tried again in April
1997, to submit his resume for inclusion into his OPF, arguing that
his resume had been submitted in February 1997, stapled to his SF-171.
Petitioner's supervisor confirmed the Chief's statement that the deadline
for submissions of the resume had passed and rejected petitioner's
request. On April 10, 1997, petitioner retired in lieu of separation.
On May 21, 1997, petitioner filed an appeal with the Board claiming that
the agency failed to follow proper RIF procedures and had discriminated
against him on the bases of sex, race, and age. On December 4, 1997, the
MSPB Administrative Judge (AJ) issued an initial decision (ID-1) affirming
the agency's RIF action and found that petitioner failed to prove his
affirmative defenses of discrimination. On January 2, 1998, petitioner
petitioned the full Board for review of ID-1. The Board affirmed the
initial decision's finding that the agency properly administered the RIF
action, however, the Board found that petitioner should have received
written notice regarding his burden and the elements of proof for his
claims of discrimination. Accordingly, the Board remanded the case for
further adjudication. On remand, petitioner was provided with written
notice of the burdens and elements of proof in discrimination cases.
A hearing was held solely on the discrimination defenses on February
5, 1999. Another initial decision (ID-2) was issued by the MSPB AJ.
In her ID-2, the MSPB AJ found that most of petitioner's evidence
presented in the remand hearing was the same as the evidence provided
in the initial hearing. Accordingly, she adopted and incorporated the
findings relating to the discrimination claims from ID-1 into ID-2.
In ID-1, the MSPB AJ found that petitioner's claim of discrimination
was based upon the retention of other individuals who were of a
different race, sex, or age than petitioner. The MSPB AJ found that
petitioner failed to establish a prima facie case of race, sex, or age
discrimination. The MSPB AJ also noted that had petitioner established
a prima facie case, the agency provided a legitimate, nondiscriminatory
reason for its action which petitioner failed to show was pretext.
Accordingly, the MSPB AJ affirmed the agency's RIF action. Petitioner
filed a petition for review to the full Board to reconsider ID-2.
On June 22, 2000, the Board denied his petition.
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. U.S. 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 petitioner was separated from his position based
on a RIF action. Further, the agency demonstrated that petitioner was
not eligible to retreat into five positions which he identified based
on his qualifications and previous positions. The agency demonstrated
that the positions petitioner identified were in fact not essentially
identical to the previous position petitioner held and that he lacked the
qualifications for the positions in question. We find that the agency
has articulated a legitimate, nondiscriminatory reason for its action.
Since the agency articulated a legitimate, nondiscriminatory reason for
its action, the burden returns to the petitioner to demonstrate that the
agency's articulated reason was a pretext for discrimination. Petitioner
attempted to show that the agency's action was based on his race by
presenting a memorandum dated June 30, 1997, which used a study by the
Office of Personnel Management in order to suggest that African-Americans
are not well represented in various ways in the Federal government and
were disproportionately impacted by RIF actions. However, petitioner
failed to demonstrate that a study of all agencies refers to petitioner's
specific agency and the RIF action at issue. Accordingly, we find that
petitioner has failed to show that the agency's articulated reason was
pretext for discrimination. Therefore, the agency's determination that
petitioner failed to establish that she was discriminated against was
correct.
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 5, 2000
__________________
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.