Mona Dogans, Complainant,v.Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionMay 31, 2000
01986527 (E.E.O.C. May. 31, 2000)

01986527

05-31-2000

Mona Dogans, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.


Mona Dogans v. Department of Housing and Urban Development

01986527

May 31, 2000

Mona Dogans, )

Complainant, )

) Appeal No. 01986527

v. ) Agency No. FW 91-29A

)

Andrew M. Cuomo, )

Secretary, )

Department of Housing and Urban )

Development, )

Agency. )

)

DECISION

INTRODUCTION

Mona Dogans (complainant) timely filed an appeal on August 26, 1998,

with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD), dated July 28, 1998, concerning

a claim 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.<1> The Commission hereby accepts the appeal in accordance with 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

Whether the agency correctly determined that complainant was not

discriminated against on the bases of race (Black), sex (female), and

retaliation (prior EEO activity) when management denied her request for

forty hours of administrative leave to prepare for an Equal Employment

Opportunity Commission (EEOC) hearing.

BACKGROUND

Complainant was employed by the agency as a Loan Assistant, GS-1165-9.

She filed a formal complaint with the agency alleging discrimination

on the above mentioned bases when she was denied forty hours of

administrative leave. In its FAD, the agency found no 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).<2> 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 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).

A prima facie case of reprisal is established by showing that: (1) the

complainant engaged in protected activity; (2) the employer was aware of

the protected activity; (3) the complainant was subsequently subjected

to adverse treatment; and (4) the adverse action followed the protected

activity within such a period of time that a retaliatory motivation may

be inferred. See Manoharan v. Columbia University College of Physicians

and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould, 808

F. 2d 493, 500 (6th Cir. 1987); McKenna v. Weinberger, 729 F.2d 783,

790 (D.C. Cir. 1984).

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. 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).

In response to complainant's claim that she was denied forty hours of

administrative leave to prepare for her EEOC hearing, we find that the

agency has articulated a legitimate, nondiscriminatory reason for its

action. The agency explained that complainant asked to be given forty

hours of administrative leave, in advance, to prepare for the hearing.

The agency said that it authorized only four hours of administrative

leave for complainant because that was as much official time as they

usually authorized at one time. Since the agency articulated such

a reason, the burden returns to the complainant to demonstrate that

the agency's articulated reason was a pretext for discrimination.

We find that the complainant has failed to do so. In her appeal to the

Commission, complainant argued that not only was she denied forty hours of

administrative leave, she never even received four hours of administrative

leave and was told to use her annual leave instead. She also asserted

that she had received forty hours of administrative leave, in the

past, for prior EEO activity. Finally, she asserted that two other

coworkers had also been granted forty or more hours of administrative

leave under similar circumstances. The record shows, however, that

complainant was granted four hours of administrative leave. It shows,

further, that complainant had in the past been granted forty hours,

but in increments rather than as a block of time granted in advance.

Other employees who complainant asserts were treated more favorably

had also been granted forty or more hours of leave in increments, on

an as-needed basis, rather than as a block of time granted in advance.

Further, these co-workers were, like complainant, Black females, who had

filed prior EEO complaints. In addition, complainant has not provided,

nor does the record contain, any other evidence of pretext. Therefore,

the agency's determination that complainant failed to establish that

she was discriminated against is supported by the record.

CONCLUSION

The decision of the agency is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

05-31-00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

________________________

Date

1 On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 The Commission typically treats a claim, such as the one in the instant

case, as a question of the reasonableness of complainant's request for

official time, and not as an issue of discrimination. See Management

Directive (MD) 110, at 6-15 to 6-17 (November 9, 1999). But since the

agency has ruled on this case as if it were a discrimination claim, we

will not disturb their method of analysis, and will rule on this case

in the same manner.