01A22181
12-12-2002
Melva Vallery, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Melva Vallery v. Department of Commerce
01A22181
December 12, 2002
.
Melva Vallery,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 01A22181
Agency No. 00-63-03228D
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that in October 1999, complainant began an assignment
working as an Assistant Manager Field Operations at the agency's Local
Census Office #3018 in New Orleans, Louisiana. This was a temporary
position, not to exceed October 2000. In May 2000, complainant was told
that she could resign or face removal. Complainant resigned, sought
EEO counseling, and subsequently filed a formal complaint alleging that
her forced resignation was unlawfully motivated by animus against her
race, which she identified as African-American. At the conclusion of
the investigation, complainant was informed of her right to request a
hearing before an EEOC Administrative Judge or alternatively, to receive
a final decision by the agency.<1> Complainant requested that the agency
issue a final decision.
In its final decision, the agency concluded that complainant did not
establish a prima facie case of discrimination. Even assuming she did,
the agency found that she failed to show that her poor performance
was not the real reason for the action taken against her. On appeal,
complainant submits a statement wherein she states that the report of
investigation clearly supports her claim of discrimination and accuses
her first line supervisor of committing �unscrupulous deeds.�
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). 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). 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 articulated such a reason,
the question becomes whether the proffered explanation was the true
reason for the agency's action, or merely a pretext for discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although the
burden of production, in other words, "going forward," may shift, the
burden of persuasion, by a preponderance of the evidence, remains at
all times on complainant. Burdine, 450 U.S. at 256.
Assuming arguendo that complainant established a prima facie case of
race discrimination, we find that the agency articulated a legitimate,
nondiscriminatory reason for requesting that complainant resign in lieu
of termination, namely that complainant's area of responsibility was
behind schedule by a very large margin; that she was disorganized and
did not know her staffing levels; and that she failed to adequately plan
and supervise adequate training sessions. The Commission further finds
that complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination. In reaching this conclusion, we note that complainant
argues on appeal that all of her operations were completed on time
and were well done, in keeping with census guidelines and directives
issued by the Dallas Regional Census Center.<2> Neither management
nor complainant offers any documentary evidence in support of their
positions, nor did complainant avail herself of the opportunity to have
an EEOC Administrative Judge make credibility determinations. As such,
we find the evidence before us to be in equipoise, and because it is
complainant's burden to prove by a preponderance of the evidence that the
agency's actions were unlawfully motivated, we find that she has failed
to carry her burden. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (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
December 12, 2002
__________________
Date
1 Because complainant does not have the
right to appeal this action to the Merits System Protection Board,
this complaint is �not mixed.� See 29 C.F.R. � 1614.302.
2 Complainant was subsequently appointed to another temporary position,
that of Field Operations Supervisor, which was a lower salaried position
before she was terminated in July 2000 due to lack of work.