01a05464
11-21-2000
Evelyn Cheshier, Complainant, v. Norman Y. Mineta, Secretary, Department of Commerce, Agency.
Evelyn Cheshier v. Department of Commerce
01A05464
November 21, 2000
.
Evelyn Cheshier,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A05464
Agency No. 99-63-00448D
DECISION
Complainant timely initiated an appeal from a final decision concerning
her complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Complainant
alleged that she was discriminated against on the bases of disability
(�mild stroke�) and age (date of birth December 25, 1952) when she was
terminated on March 5, 1999.
The record reveals that during the relevant time, complainant was employed
as an administrative clerk at the agency's Census Field Division in
Lakewood, Colorado.
The agency, Bureau of the Census, and the Equal Employment Opportunity
Commission (EEOC) entered into a Memorandum-of-Understanding (MOU) to
govern complaints filed by decennial census workers. Pursuant to this
MOU, the EEOC's Washington, D.C. Field Office determined whether to
accept the complaint, conducted settlement negotiations, and returned the
complaint to the agency for investigation. The Field Office reviewed
the agency's investigation for any deficiencies, then conducted an
early-neutral evaluation of the complaint.<1> At the conclusion of
the Field Office's evaluation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge, or alternatively,
to receive a final decision from the agency. Complainant failed to
request a hearing within the applicable time limit. The agency issued
a final decision dated July 10, 2000, finding no discrimination.<2>
In its decision, the agency concluded that complainant was not a
qualified individual with a disability. Specifically, the agency noted
that complainant provided nothing other than her own assertions that she
was substantially limited or regarded as such. The agency also found
a legitimate, nondiscriminatory reason for its actions -- complainant
was terminated for poor performance and �inability to get the job done.�
According to the agency, complainant failed to prove that these reasons
were a pretext for discrimination.
ANALYSIS AND FINDINGS
Even assuming that complainant was an individual with a disability under
the Rehabilitation Act, the Commission nonetheless finds no evidence
of disparate treatment. In disparate treatment cases involving only
indirect evidence, the same analysis is used for cases brought under
Title VII, the Rehabilitation Act, or the ADEA. See Brown v. Department
of the Army, EEOC Appeal No. 01970189 (Feb. 25, 2000) (citing Prewitt
v. United States Postal Service, 662 F.2d 292, 305 n. 19 (5th Cir. 1981)
and Sutton v. Atlantic Richfield Co., 646 F.2d 407, 411 (9th Cir. 1981)).
This analysis first requires complainant to establish a prima facie case
of discrimination. See Reeves v. Sanderson Plumbing Products, Inc.,
120 S. Ct. 2097 (2000) (affirming the analysis in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-804 (1973)). If complainant succeeds,
the burden of production shifts for the agency to provide a legitimate,
nondiscriminatory reason for its actions. Id. The burden then returns
to complainant for proof, by preponderance of the evidence, that the
agency's reason is a pretext for discrimination. Id. The ultimate burden
of proof remains on complainant. See Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). With regard to proving
age discrimination, the ADEA requires complainant to establish that age
was a determining factor in the agency's action against him. See Raby
v. Department of the Treasury, EEOC Request No. 05960549 (Aug. 20, 1999)
(citing Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993).
The Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for its actions, and complainant failed to
rebut its reasoning. Complainant presented no evidence of comparative
employees who were retained despite similar performance problems, nor
otherwise demonstrated that the agency's reasons for her termination
were a pretext for discrimination. Therefore, complainant failed to
prove disparate treatment on the bases of disability or age.
CONCLUSION
Accordingly, the agency's findings of no discrimination are AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 21, 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 complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1After certifying the sufficiency of the record, the Field Office was
unable to reach complainant for the early-neutral evaluation. As a
result, it ordered the agency to issue complainant a copy of the Report of
Investigation (ROI) with relevant rights to a hearing or agency decision.
2On September 26, 2000, an EEOC Administrative Judge issued an order to
show cause why the untimely hearing request should be entertained. The AJ
dismissed the request on October 16, 2000 (EEOC Hearing No. 320-AO-8314X),
and remanded the complaint to the agency.