Mary Overman, Appellant,v.Lt. Gen. Kenneth A. Minihan Director, National Security Agency Agency.

Equal Employment Opportunity CommissionSep 3, 1999
01974281 (E.E.O.C. Sep. 3, 1999)

01974281

09-03-1999

Mary Overman, Appellant, v. Lt. Gen. Kenneth A. Minihan Director, National Security Agency Agency.


Mary Overman, )

Appellant, )

) Appeal No. 01974281

v. ) Agency No. 96-029

)

Lt. Gen. Kenneth A. Minihan )

Director, )

National Security Agency )

Agency. )

)

DECISION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on

the bases of religion (Christian ), sex (female ), and age (over 40),

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq.; and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. Appellant alleges

she was discriminated against when, on February 22, 1997, she was removed

from her position as Division Chief. The appeal is accepted in accordance

with EEOC Order No. 960.001.

BACKGROUND

The record reveals that appellant filed a formal EEO complaint on May 15,

1996 alleging discrimination as referenced above. The agency accepted

the complaint for processing and, at the conclusion of the investigation,

issued a final decision finding no discrimination. The central event

in this case occurred when the agency notified, via electronic mail, the

division workforce that appellant would no longer serve as Division Chief.

Appellant then filed the instant complaint.

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), Loeb v. Textron, Inc., 600 F.2d 1003

(1st Cir. 1979). Appellant has the initial burden of establishing a

prima facie case of discrimination. Id. at 802. If appellant meets

this burden, then the burden shifts to the agency to articulate some

legitimate, nondiscriminatory reason for its challenged action. Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

If this is done, then the appellant must prove, by a preponderance of

the evidence, that the legitimate reason articulated by the agency was

not its true reason, but rather 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 a

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).

The Commission finds that the agency has articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, the agency

contends that appellant was removed from her division as Deputy

Chief because: (1) she had minimal contact with and failed to provide

essential guidance to her workforce; (2) her workforce did not believe

that she knew what was happening in her division; (3) she suffered

from poor prioritization and delegation skills; failing to properly

utilize resources including her deputy and branch chiefs for mission

accomplishments; (4) she spent an inordinate amount of time focused on

projects outside her division; and (5) she failed to deliver her expected

contributions to the organization's strategic plan.

Because the agency has proffered legitimate, nondiscriminatory reasons

for the alleged discriminatory event, appellant now bears the burden

of establishing that the agency's stated reasons are 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 this case, appellant has failed to meet that burden. Based upon

affidavits from several agency employees, including some of appellant's

subordinates, appellant was an ineffective manager. To refute this

contention, appellant asserts that she was well qualified for the

position. However, according to materials submitted by the agency,

the agency was concerned about her performance in the job, not her

qualifications for it. Because appellant presents no evidence that her

performance as Division Chief was not substandard, we find that the she

failed to prove, by a preponderance of the evidence, that the agency's

articulated reasons for its actions were a pretext for discrimination.

CONCLUSION

Accordingly, 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:

September 3, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations