Gloria S. Howard, Appellant,v.Lawrence H. Summers, Secretary, Department of Treasury, Agency

Equal Employment Opportunity CommissionOct 8, 1999
01974240 (E.E.O.C. Oct. 8, 1999)

01974240

10-08-1999

Gloria S. Howard, Appellant, v. Lawrence H. Summers, Secretary, Department of Treasury, Agency


Gloria S. Howard v. Department of Treasury

01974240

October 8, 1999

Gloria S. Howard, )

Appellant, )

) Appeal No. 01974240

v. ) Agency No. 96-3229

)

Lawrence H. Summers, )

Secretary, )

Department of Treasury, )

Agency )

)

DECISION

INTRODUCTION

Appellant timely filed an appeal with the Equal Employment Opportunity

Commission (Commission) from a final agency decision concerning her

complaint of unlawful employment discrimination in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et

seq, and the Age Discrimination in Employment Act of 1967, as amended,

29 C.F.R. Section 621 et seq. Accordingly, the appeal is accepted in

accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly found no discrimination

based on Race (Black), sex (female), and age (58), when appellant was

not selected for a 120 day detail as secretary to the Assistant Division

Chief (ADC).

BACKGROUND

Appellant, a group secretary in the agency's Examination Branch, applied

for a 120 day detail as secretary reporting to the ADC. Another group

secretary (the Selectee) (white, female, 27) was detailed to the position.

The ADC stated that he allowed the Branch Chief (BC) to select which

group secretary would receive the detail. The BC stated that he could

spare the Selectee more easily than appellant because appellant had to

complete a particular work project and that appellant�s group needed her

more because her manager was new and her group had recently realigned.

Appellant stated that she completed the work project ten days prior to the

selection, and that a co-worker completed the selectee's work project.

Appellant believed the BC's reasons were a pretext for discrimination.

She states that if he had checked on the status of the work project

prior to the selection, he would have known that hers was complete.

In its final decision, the agency found that appellant failed to

prove discrimination and that the agency articulated legitimate,

nondiscriminatory reasons for its actions.

On appeal, appellant states that she asked for details to numerous

positions. She also alleges that her manager harasses her by timing

when she is away from her desk.

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 discrimination. If appellant

meets this burden, the burden shifts to the agency to articulate

some legitimate, nondiscriminatory reason for its challenged action.

Appellant must then prove, by a preponderance of the evidence, that

the legitimate reason articulated by the agency was a pretext for

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In

an ADEA case, the ultimate burden remains on appellant to demonstrate,

by a preponderance of the evidence, that age was a determinative factor.

Loeb v. Textron, 600 F. 2d 1003 (1st Cir. 1979); Fodale v. Department of

Health and Human Services, EEOC Request No. 05960344 (October 16, 1998).

This established order of analysis, 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 articulates a legitimate,

nondiscriminatory reason for the actions at issue, the factual inquiry can

proceed directly to the third step of the McDonnell Douglas analysis,

that is, the ultimate issue of whether appellant has shown by a

preponderance of the evidence that the agency's actions were motivated

by discrimination. Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors

v. Aikens, 460 U.S. 11, 713-714 (1983).

The agency stated that appellant was not selected for the detail because

she had to complete a particular work project and because her group

could not spare her due to its recent realignment and assignment of a

new manager. The burden returns to appellant to demonstrate that the

agency's reason was a pretext for discrimination, that is, that the

agency was more likely motivated by discriminatory reasons. Burdine,

450 U.S. at 253.

Appellant states that she completed her work project ten days prior to

the selection. Appellant provided no evidence however regarding the

agency's contention that her group could not spare her.

Appellant has not demonstrated that the agency's articulated legitimate,

nondiscriminatory reasons for detailing the Selectee were a pretext

to mask discrimination. We note that employers have broad discretion

to set policies and carry out personnel decision, and should not be

second-guessed by the reviewing authority absent evidence of unlawful

motivation. Burdine, 450 U.S. 248, 250 (1981).

CONCLUSION

Accordingly, the decision of the agency was proper and is AFFIRMED.

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. 8, 1999

________________________ _______________________

DATE Carlton Hadden, Acting Director

Office of Federal Operations