01971495
10-01-1999
Joni M. Jordan, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Joni M. Jordan, )
Appellant, )
) Appeal No. 01971495
v. ) Agency No. AR000960615
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
)
DECISION
Appellant timely filed an appeal with the Commission from a final
decision of the agency concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. � 2000e et seq.; and the Age Discrimination in Employment Act
of 1967, 29 U.S.C. � 621 et seq. The appeal is accepted in accordance
with EEOC Order No. 960, as amended. See 29 C.F.R. � 1614.402(a).
Appellant filed a complaint in which she alleged that the agency
discriminated against her on the bases of race (black), age (56) and
reprisal by:
reassigning her to a GS-9 employee relations specialist position on
August 21, 1994; and
Not selecting her for a GS-11 staffing specialist position in September
1994.
To prevail in a disparate treatment claim such as this, appellant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Although this
test developed in the context of Title VII, it also applies to claims
brought under the ADEA, except that appellant must prove that her age
was the determining factor in the agency's action. Hazen Paper Company
v. Biggins, 507 U.S. 604, 610 (1993); Raby v. Department of the Treasury,
EEOC Request No. 05960549 (August 20, 1998).
Appellant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. She may establish a prima facie case of reprisal
by showing: (1) that she engaged in protected EEO activity; (2) that the
agency was aware of that activity; and (3) that she was subjected to an
adverse action at such a time or in such a manner as to support a causal
connection between the two events Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318 (D. Mass), aff'd, 545 F.2d 222
(1st Cir. 1976); Frye v. Department of Labor, EEOC Request No. 05940764
(December 15, 1994).
In this case, the agency assumed that appellant established a prima
facie case with respect to each allegation. This shifts the burden
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). The civilian personnel officer (CPO) stated that
he reassigned appellant because he needed to bring new people aboard who
could implement the new methods in the staffing function that the agency
was promulgating. He also stated that reassigning appellant would give
her the opportunity to develop new skills and enhance her chances of
being retained in the event of a downsizing. Regarding the nonselection,
the CPO stated that the GS-11 had been filled from a stopper list, and
that appellant and any other qualified GS-9 would have been considered
were it not for that list. We find that these reasons are legitimate,
non discriminatory and fully supported by the testimony of the CPO and
the workforce effectiveness chief.
To ultimately prevail, appellant must prove, by a preponderance of
the evidence, that the agency's explanation is pretextual. St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department
of the Navy, EEOC Request No. 05950351 (December 14, 1995). A labor
relations officer testified that the CPO told him several times that
he did not want to promote appellant, and that the CPO told racial
jokes on at least one occasion. The labor relations officer is not a
credible witness, however, because he had been reprimanded, suspended,
and eventually terminated by the CPO for falsifying certain information.
Another witness testified that the CPO did not get along with certain
people, including appellant, but that this was attributable to the CPO's
management style rather than to discriminatory animus. Appellant has not
presented any documents or testimony which undermines or contradicts the
CPO's testimony regarding the need to implement agency-mandated changes
or the GS-11 selection being made from the stopper list.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
10-01-99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations