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).