Karen J. Miller, Appellant,v.Lawrence Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionOct 1, 1999
01974358 (E.E.O.C. Oct. 1, 1999)

01974358

10-01-1999

Karen J. Miller, Appellant, v. Lawrence Summers, Secretary, Department of the Treasury, Agency.


Karen J. Miller v. Department of the Treasury

01974358

October 1, 1999

Karen J. Miller, )

Appellant, )

) Appeal No. 01974358

v. ) Agency No. 96-4031

)

Lawrence Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

)

)

DECISION

INTRODUCTION

Appellant timely initiated an appeal of a final agency decision

concerning her complaint of unlawful employment discrimination on the

bases of race/color (Black) and sex (female) in violation of Title VII

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

The appeal is accepted in accordance with EEOC Order No. 960.001.

ISSUE PRESENTED

The issue presented herein is whether appellant has established that she

was discriminated against on the bases of race/color and sex when, on

September 29, 1995, she was terminated from her position as a GS-1890-5

U.S. Customs Inspector.

BACKGROUND

Appellant, a probationary employee, filed a formal complaint on November

7, 1995 in which she raised what has been identified as issue presented.

Following an investigation, appellant requested a hearing and, on May 23,

1996, her case was assigned to an administrative judge. On December 17,

1995, appellant requested a final agency decision without a hearing.

The agency thereafter issued a final decision, dated April 10, 1997,

finding no discrimination. This appeal followed.

The central event in this case occurred on September 29, 1995 when

appellant was issued a letter of termination, effective on that date.<1>

The official termination followed a meeting, held on September 22, 1995,

attended by appellant, her supervisor, and the union steward.

According to agency officials, appellant's termination was not motivated

by discriminatory animus. Instead, they contend that she was fired

because she failed to perform her duties as a Customs Inspector

in a satisfactory manner. Specifically, they cite to a series of

events leading to her termination. For example, while awaiting entry

into Customs Inspector School, appellant was assigned to help the

administrative staff in the office at San Ysidro. During this time,

the Senior Inspector reported that she was uncooperative with other

administrative support staff members.<2> Other members of the support

staff also indicated that appellant was uncooperative.<3> After

graduating from Customs Inspector School, the Branch Chief, the person

charged with training appellant, had to counsel her to be more tolerant

of travelers while processing them.<4> In addition to these and other

incidents, the agency asserts that appellant was the subject of several

travelers' complaints.<5>

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. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973). First, appellant must 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, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

articulates a legitimate, nondiscriminatory reason, then the appellant

must prove, by a preponderance of the evidence, that the legitimate reason

proffered by the agency was a pretext for discrimination. Id. at 256.

Although the initial inquiry in a discrimination case usually focuses

on whether the appellant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the appellant has

established a prima facie case to whether s/he has demonstrated by

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

In this case, the Commission finds that the agency has articulated a

legitimate, nondiscriminatory reason for its action. Specifically, the

agency contends that appellant was terminated because she was unable

or unwilling to exhibit a professional and pleasant attitude towards

co-workers and travelers while performing her duties.

Because the agency has proffered a legitimate, nondiscriminatory

reason for the alleged discriminatory event, appellant now bears the

burden of establishing that the agency's stated reason is merely a

pretext for discrimination. Shapiro v. Social Security Administration,

EEOC Request No. 05960403 (December 6, 1996). Appellant can do this

by showing that the agency was motivated by a discriminatory reason.

Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).

In the present case, appellant has failed to meet that burden. To support

her allegation of discrimination, appellant asserts that she was not

adequately trained, was referred to as an "ass" in an e-mail<6>, and

was not, along with other African Americans, given the same assistance

as her White and Hispanic counterparts.<7>

Regarding the allegation of inadequate training, appellant submits no

evidence indicating that other employees similarly situated received more

training than she. In fact, her concern as to training seem to hinge

on the fact that she was not given "special" training. With regards

to the e-mail, the author explained that the message should have read,

"How are the San Ysidro assassins doing?" However, even if appellant's

interpretation of the e-mail is correct, the agency points out, and the

Commission agrees, that the author was not involved in the events leading

up to the termination. As such, we find that the e-mail is immaterial for

our purposes. Regarding appellant's last piece of "evidence," i.e., she

was not given the same assistance as her White and Hispanic counterparts,

she submits no evidence which proves she was treated differently than

similarly situated employees not within her protected group. With no

proof, appellant's contention that she was treated differently, fails

to assist her in meeting her burden. Based on the foregoing, we hold

that appellant's evidence is insufficient to establish pretext.

CONCLUSION

Therefore, after a careful review of the record, including appellant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we hereby AFFIRM the final

agency decision.

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:

Oct. 1, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 IF Ex. 25, p. 203.

2 Id.

3 IF Ex. 2, p. 78 (employee stating that appellant was uncooperative,

would verbally refuse to help out with the mail, was not amenable to

criticism, and remained defensive); see also, IF Ex. 8, p. 86 (employee

stating that appellant had trouble getting along with fellow co-workers,

appeared to have a chip on her shoulder, had an attitude problem, and

indicated that she (appellant) was above performing any administrative

duties assigned to her since she was hired as an inspector, not a clerk).

4 IF Ex. 24, p. 170 (stating that he was startled by appellant's abrupt

and cold demeanor towards the travelers. Also, indicating that he

counseled appellant that they were a service and the people crossing

the border were not the enemy).

5 See IF, p. 39; IF, p. 40; IF, p. 46; see also, IF, p. 38 (memorandum,

dated August 25, 1995, citing appellant for unprofessional conduct

regarding a traveler).

6 See, IF Ex. 25, p. 198 (appellant stating that in June 1995 she

was informed by a fellow inspector of an e-mail in regards to himself

(fellow inspector) and her (appellant) which read, "How are the ace and

ass in 506 doing?").

7 See, IF Ex. 25, p. 199.