Marsha L. Jones, Appellant,v.Norman E. D'Amours, Secretary, National Credit Union Administration, Agency.

Equal Employment Opportunity CommissionSep 17, 1999
01971300 (E.E.O.C. Sep. 17, 1999)

01971300

09-17-1999

Marsha L. Jones, Appellant, v. Norman E. D'Amours, Secretary, National Credit Union Administration, Agency.


Marsha L. Jones v. National Credit Union Administration

01971300

September 17, 1999

Marsha L. Jones, )

Appellant, )

) Appeal No. 01971300

v. ) Agency No. NCUA 96-03

)

Norman E. D'Amours, )

Secretary, )

National Credit Union )

Administration, )

Agency. )

)

DECISION

INTRODUCTION

On October 25, 1996, Marsha L. Jones (the appellant) timely filed an

appeal with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD) dated September 25, 1996, concerning

her 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.

The Commission hereby accepts the appeal in accordance with EEOC Order

No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly determined that

appellant had failed to prove that the agency discriminated against her

based on sex (female) when she was issued a 14-day suspension.

BACKGROUND

Appellant was employed by the agency as an Accounting Technician at the

agency's Alexandria, Virginia office. She filed a formal complaint on

March 29, 1996, alleging discrimination on the basis of sex when she was

issued a Notice of Proposed Suspension for fourteen days on March 8, 1996,

which was subsequently upheld. She was issued the Notice of Proposed

Suspension for "continued unauthorized absences from the worksite."

The agency accepted the complaint for investigation and processing.

At the conclusion of the investigation, the agency issued a copy of its

investigative report and notified appellant of her right to request an

administrative hearing. After appellant requested a final agency decision

without a hearing, the agency issued its FAD on September 25, 1996.

In its FAD, the agency found that the appellant had failed to establish

a prima facie case of sex discrimination because she was unable to

demonstrate that similarly situated employees outside of her protected

group were subjected to different or lesser discipline due to their work

attendance record. The FAD further stated that appellant had failed to

establish that the legitimate, nondiscriminatory reasons articulated

by the agency for its decision to issue the suspension were a pretext

for discrimination. This appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For appellant 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). 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). Once the agency

has met its burden, the complainant bears the ultimate responsibility

to persuade the fact finder 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).

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 appellant 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. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

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

Here, in response to appellant's claims of discrimination, the agency

presented evidence that appellant's attendance record was unsatisfactory.

Appellant had been suspended previously for her "frequent unauthorized

absences from the worksite." She had also, at one point nearly two years

earlier, been under a "Leave Restriction" policy, in which she had to

document all requested sick leave with a medical certificate and had to

request non-emergency annual leave 3 days in advance. We find that the

agency has articulated a legitimate, nondiscriminatory reason for its

decision to suspend appellant.

Since the agency articulated a legitimate, nondiscriminatory reason for

its action, the burden returns to the appellant to demonstrate that the

agency's articulated reason was a pretext for discrimination. We find

that appellant has failed to do so. Therefore, the agency's determination

that appellant failed to establish that she was discriminated against

was correct.<1>

Accordingly, the decision of the agency was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

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 this

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 this 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 this 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 this 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:

September 17, 1999

______________ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 We find that the agency erred to the extent that it found that

appellant had not established a prima facie case of sex discrimination

because she was unable to demonstrate that she was treated less favorably

than any comparative employee who had a similar attendance record. We

note that to establish a prima facie case, appellant must only present

evidence which, if unrebutted, would support an inference that the

agency's actions resulted from discrimination. Furnco, 438 U.S. at 576.

It is not necessary for the appellant to rely strictly on comparative

evidence in order to establish an inference of discriminatory motivation

necessary to support a prima facie case. O'Connor v. Consolidated Coin

Caterers Corp., 116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor

v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, n.4

(September 18, 1996); Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th

Cir. 1996).