05a00611
02-12-2001
Lorene Davis, Complainant, v. Elaine L. Chao, Secretary, Department of Labor, Agency.
Lorene Davis v. Department of Labor
05A00611
02-12-01
.
Lorene Davis,
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Labor,
Agency.
Request No. 05A00611
Appeal No. 01991627
Agency No. 7-04-113
DECISION ON REQUEST TO RECONSIDER
On April 11, 2000, Lorene Davis (complainant) timely initiated a request
to the Equal Employment Opportunity Commission to reconsider the decision
in Lorene Davis v. Alexis M. Herman, Secretary, Department of Labor,
EEOC Appeal No. 01991627 (March 31, 2000). EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any previous
decision where the party demonstrates that: (1) the previous decision
involved a clearly erroneous interpretation of material fact or law;
or (2) the decision will have a substantial impact on the policies,
practices or operation of the agency. 29 C.F.R. � 1614.405(b).<1>
For the reasons set forth below, the complainant's request is denied.
The issue presented is whether complainant's request meets the criteria
for reconsideration of the previous decision.
Complainant filed her formal complaint on July 21, 1997, alleging
discrimination based on race (black), sex, and reprisal discrimination
when she received a fully successful rating and when agency officials
did not respond to her written request for reassignment. Following an
investigation, she requested a final agency decision (FAD). The agency
issued its FAD on December 8, 1998, finding no discrimination.
On appeal, the previous decision affirmed the agency's FAD.
Complainant worked as a Contract Compliance Advisor in the agency's
Employment and Training Administration, located in Atlanta, Georgia.
She complained about her 1997 rating and management's failure to respond
in writing to her request for transfer. She also indicated that her
division was poorly managed and that she carried a substantial workload.
Her supervisors contended that she received the rating warranted by her
performance and that her rating was the same as others who completed
the same number of reports. With regard to her request for transfer,
her managers stated that she was given an oral explanation that a high
workload in the division did not allow for her transfer to another area.
Complainant has filed a request that the Commission reconsider the
previous decision. Complainant stated that, by letters in February and
March, 2000, she requested the Commission to consolidate her pending
appeals and that the agency failed to review her pending complaints
as directed in EEOC Appeal No. 01972890 (April 27, 1997); that she was
denied a lateral transfer to another work unit; that her unit was under
investigation by the agency's EEO manager as of March 2000; and that
she objected to the summary format of the previous decision.<2>
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument that tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow, and it is not a form of second appeal. Lopez v. Department of
the Air Force, EEOC Request No. 05890749 (September 28, 1989); Regensberg
v. USPS, EEOC Request No. 05900850 (September 7, 1990).
Initially we note that, while the Commission reviews a complainant's
pending appeals for possible consolidation, it normally will not
combine items that are not related or an initial appeal with a request to
reconsider a previous decision. For example, complainant's appeal in the
instant matter (EEOC Appeal No. 01971627) was the only matter pending for
a decision on its merits, that is, the question of whether discrimination
occurred, while the other matters (EEOC Appeal Nos. 01971646, 01955788,
01972890, 01A00981) had been closed, were not ripe for decision, or
were pending a procedural decision, that is, whether the agency properly
complied with our regulations. In EEOC Appeal No. 01972890 (April 28,
1998), we note that the Commission recommended that the agency "review
all of [complainant's] complaints, including the instant complaint,
to determine if, together they state a hostile work environment claim."
EEOC Appeal No. 01972890 (April 28, 1998), p. 2.
We now turn to the merits of complainant's complaint. Generally, claims
of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
For complainant to prevail, she 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, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978).
Once a complainant has established a prima facie case, 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
her obligation to show by a preponderance of the evidence that the agency
acted on the basis of a prohibited reason. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 715-716 (1983). This established order
of analysis in discrimination cases, 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 has articulated a legitimate,
nondiscriminatory reason for the personnel action at issue, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. U.S. Postal Service Board of Governors v. Aikens,
460 U.S. at 713-714.
In response to her complaint, complainant's supervisors stated that she
received a rating in accord with her performance and the rating of others
who completed the same number of reports. With regard to her request for
transfer, her managers stated that they orally explained that there was
a high workload in the division, which did not allow for her transfer
at that time. We find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions.
Since the agency has articulated legitimate, nondiscriminatory reasons
for its actions, the burden returns to complainant to demonstrate that
the agency's articulated reasons were a pretext for discrimination.
Complainant must show that agency's action was more likely than not
motivated by discrimination, that is, that its actions were influenced
by legally impermissible criteria. Absent a showing that the agency's
articulated reasons were used as a tool to discriminate against her,
complainant cannot prevail.
Complainant's statements in the record, including all material submitted
on appeal and with this request, do not demonstrate pretext. That the
division is run poorly, that others were absent, or that the office was
under investigation in 2000 does not demonstrate that the agency's actions
were based on discriminatory animus or prohibited factors. We find that
the evidence of record is insufficient to establish pretext and that
complainant has not demonstrated that the agency's articulated reasons
for its action were pretextual. We find therefore that the agency did
not discriminate against complainant on the bases of her race and sex.
To establish a prima facie case of reprisal discrimination, complainant
must show that she engaged in prior protected activity, that acting
agency officials had knowledge of complainant's EEO complaints, and
that the adverse agency action took place at such a time as to establish
an inference of retaliatory motive. Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976); Manoharan v. Columbia University College of
Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). To support a
finding of unlawful retaliation, complainant must present proof that the
acting agency official(s) took the adverse action at issue because of
complainant's prior protected activity and sought to deter complainant
or others. EEOC Compliance Manual on Retaliation, No. 915.003 (May 20,
1998), p. 8-16. Even assuming that complainant established a prima
facie case of reprisal discrimination, as stated, above, the agency
articulated legitimate, nondiscriminatory reasons for its actions that
complainant did not demonstrate were pretextual. Therefore, we find
that the agency did not discriminate against complainant in reprisal.
As to her concern about the length of the previous decision, complainant
is advised that her appeal was given a de novo review as required by
Commission regulations. 29 C.F.R. � 1614.405(a). Further, the entire
record and all statements submitted on appeal were thoroughly reviewed.
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
complainant's request fails to meet any of the criteria of 29 C.F.R. �
1614.405(b), and it is the decision of the Commission to deny the
complainant's request. The decision of the Commission in EEOC Appeal
No. 01991627 (March 31, 2000) remains the Commission's final decision.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
__02-12-01________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Complainant stated that she accepted early retirement effective December
30, 1997, due to management having created a hostile work environment.
This allegation may raise a claim of constructive discharge. The record
shows that, at the time of her retirement, the agency advised complainant
of her rights if she wished to allege a claim of constructive discharge.