01a60462
07-13-2006
Janice Boss, Complainant, v. Margaret Spellings, Secretary, Department of Education, Agency.
Janice Boss v. Department of Education
01A60462
07-13-06
.
Janice Boss,
Complainant,
v.
Margaret Spellings,
Secretary,
Department of Education,
Agency.
Appeal No. 01A60462
Agency No. ED-2005-11-00
DECISION
On October 25, 2005, Janice Boss (complainant) filed an appeal from
the September 2, 2005, final decision of the Department of Education
(agency) concerning a 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 U.S.C. � 621 et seq. The appeal is timely filed
(see 29 C.F.R. � 1614.402(a)) and is accepted in accordance with 29
C.F.R. � 1614.405.
Complainant claimed discrimination (a) based on race (Black), sex, and age
(DOB 6/1/51) when she was not compensated for performing GS-13 work,
a vacancy announcement for a GS-13 was 'concealed' from her, her 'IDP'
was not completed by her supervisor, and she received a satisfactory
appraisal; and (b) in reprisal for prior EEO activity with regard to
several incidents concerning elimination of her 'team,' scrutiny of
her work and leave usage, and her assignments. Complainant was a GS-12
Management Analysis in the Post Audit Group (PAG).
In general, claims of disparate treatment, such as complainant's,
are examined under a tripartite analysis whereby 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 consideration was a factor
in the adverse employment action. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-804 (1973); 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). If the agency is
successful, the burden reverts back to the complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show 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); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
In response to complainant's claims, her supervisor (S1) explained that,
with regard to issue (a), complainant sought a promotion by accretion
of duties and that she was not performing GS-13 work; the vacancy
announcement was advertised in the usual manner and not concealed from
her; in fact, she did not follow up on the IDP he proposed to her; and
her work merited only a satisfactory rating. With regard to issue (b),
S1 stated that abolishment of the PAG would not affect her duties or
assignments; that her work received scrutiny because of a backlog she
had accumulated; that her leave usage was investigated due to several
unresolved matters; and that the assignments given to her were at the
appropriate level for her job and skill level. We find that the agency
has articulated legitimate, nondiscriminatory reasons for its actions.
The burden of persuasion now returns to the complainant to demonstrate
by preponderant evidence that the reasons given by the agency for its
actions were pretextual. The complainant must show that the agency's
actions were more likely than not motivated by discrimination, that is,
that the actions were influenced by legally impermissible criteria.
Other than the assertion of her claims, complainant has not provided
probative evidence in support. We find that complainant has failed to
refute the agency's reason for its actions and to demonstrate that the
agency's reasons were not true or based on illegal considerations of race,
sex, age, and reprisal.<1>
After a review of the record, including statements and arguments not
addressed herein, we find that the preponderance of the evidence of
record does not establish that discrimination occurred. It is the
decision of the Commission to affirm the agency's final decision,
because the preponderance of the evidence of record does not establish
that discrimination occurred.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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
_____07-13-06_____________
Date
1Complainant did not offer comments on appeal.