Eleanor M. Cummings, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 23, 2000
01A33138 (E.E.O.C. Mar. 23, 2000)

01A33138

03-23-2000

Eleanor M. Cummings, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Eleanor M. Cummings v. Department of Veterans Affairs

01A33138

March 23, 20004

.

Eleanor M. Cummings,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A33138

Agency No. 200L-0598-2002100874

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the Commission

affirms the agency's final decision.

The record reveals that during the relevant time, complainant was employed

as a Program Clerk, GS-5, assigned to the Transportation Section of

Engineering Service, in Little Rock, Arkansas. Complainant sought EEO

counseling and subsequently filed a formal complaint on January 11,

2002, alleging that she was discriminated against on the basis of race

(Black) when between September 1996 and May 2000, she was not promoted

to a GS-6 level position in the Maintenance and Operation Section where

she worked before transferring to the Transportation Section.

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Complainant

requested that the agency issue a final decision.

In its FAD, the agency concluded that assuming that complainant

established a prima facie case of race discrimination, the agency

articulated a legitimate, non-discriminatory reason for failing to promote

complainant. Specifically, the agency found that management was in the

process of upgrading complainant's position by way of reclassification,

but that complainant opted to transfer from the Maintenance and Operations

Section before the position could be upgraded. Finally, the agency

concluded that complainant failed to prove by a preponderance of the

evidence that the reason articulated and established through evidence

of record was a pretext for race discrimination. Complainant makes no

new contentions on appeal.

ANALYSIS AND FINDINGS

In general, claims alleging disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979).

A complainant 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 reason was a factor

in the adverse employment action. McDonnell Douglas Corp. v. Green, 411

U.S. at 802; Furnco Construction Corp v. Waters, 438 U.S. 567 (1978).

Next, the agency must articulate a legitimate, nondiscriminatory reason

for its action(s). Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981). After the agency has offered the reason for its

action, the burden returns to the complainant to demonstrate, by a

preponderance of the evidence, that the agency's reason was pretextual,

that is, it was not the true reason or the action was influenced by

legally impermissible criteria. Burdine, 450 U.S. at 253; 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

the complainant 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).

Assuming arguendo, that complainant established a prima facie case of

discrimination based on race, the Commission finds that the agency

articulated a legitimate, nondiscriminatory reason for its action.

Specifically, the record reveals that complainant was not promoted to

GS-6 because she voluntarily transferred to another GS-5 position in

another section.

The burden returns to complainant to establish that the agency's

explanation was a pretext for discrimination. Upon review, the Commission

finds that complainant has failed to do so. In reaching this conclusion,

we note that complainant admitted that when management knew she would

be applying for a lateral position, management told her if she would

remain in her position they would make the effort to get her promoted.

Regardless, complainant decided to transfer to another section.

The record reveals that complainant laterally transferred to the

Transportation Section in May 2000, into a position with no possible

promotion to a GS-6 level. We find that complainant failed to establish

by a preponderance of the evidence that the agency's action was motivated

by discriminatory animus.

Therefore, after a careful review of the record, and arguments and

evidence not specifically addressed in this decision, we affirm the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

March 23, 20004

__________________

Date