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,
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