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.