01990011_r
11-20-2001
Ollie M. Darby v. Department of Energy
01990011
November 20, 2001
.
Ollie M. Darby,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01990011
Agency No. 98 (007) OH
DECISION
Complainant filed an appeal with this Commission from an 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 Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was
employed as an accountant, GG-510-14, in the agency's Ohio Field Office
in Miamisburg, Ohio. Believing she was the victim of discrimination
based on race and in reprisal for prior protected activity, complainant
sought EEO counseling. Informal efforts to resolve complainant's concerns
were unsuccessful.
Subsequently, on October 7, 1997, complainant filed a formal complaint.
The agency framed the claim as follows:
Between July 8, 1997 and July 23, 1997, complainant was not selected to
act in any of several positions.
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.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
On August 26, 1998, the agency issued a final decision finding that
complainant was not discriminated against when she was not designated
to act as Chief Financial Officer (CFO) or Budget Director between July
8, 1997 and July 23, 1997. Specifically, the agency determined that
complainant failed to establish a prima facie case of discrimination
based on race or reprisal because one of the employees chosen to perform
the acting function was a member of the same protected groups. According
to the agency, the selectee, the Financial Services Director, is African
American and had engaged in EEO activities.
Moreover, the agency found that even assuming that complainant had
established a prima facie case, management articulated a legitimate,
non-discriminatory reason for its actions. The CFO attested that the
Financial Services Director and the Budget Director, both supervisory
GS-15s, were designated to act during his absence in an effort to maintain
the chain of command. The CFO reasoned that he would never choose a GS-14
to act for him if a GS-15 employee was available, because he would not
want a lower grade supervising employees of higher grades. The CFO noted
that consistent with such reasoning, he designated complainant to act for
him during the 1997 holiday season when the two higher-graded employees,
the Financial Services Director and the Budget Director, were absent.
The agency noted that, in an effort to show pretext, complainant argued
that the former CFO had designated her to act on a rotating basis.
While serving in an acting capacity, complainant states that she
supervised the present CFO who was a GS-15 at the time. In response,
the agency determined that even if complainant's assertion was true,
it is insufficient to establish pretext. The agency found that managers
have the discretion to select the employees that will act in their place
and that here there is no evidence that the CFO was required to follow
the practices of the former CFO. Further, the agency determined that the
CFO's approach, to avoid disrupting the chain of command, is a standard
and accepted personnel practice. Complainant also argued that the CFO's
reasoning was pretext because he had allowed GS-13 employees to act as
GS-15s. The agency concluded that complainant's assertion was inaccurate
on three counts: the action was taken by the Financial Services Director,
not the CFO; GS-13 team members in fact were temporarily promoted on a
rotating basis to the GS-14 team leader position; and complainant was
designated by the Financial Services to act for him on at least two
occasions in 1997.
With respect to complainant's claim that a co-worker (hereinafter
�Employee A�) was designated the Acting Budget Director while she was
not given such an opportunity, the agency found that complainant did
not establish a prima facie case because Employee A was not �similarly
situated�. The agency determined that Employee A was assigned to
the position of Budget Team Leader and designated to act in place of
the Budget Director. When the Financial Services Director decided to
designate Employee A it was considered equivalent to acting for the
Budget Director.
On appeal, complainant expresses her dissatisfaction with the agency's
processing of her EEO complaints, as well as the statistics and statements
included in the Investigative Report. In addition, she maintains
that the complaint encompasses the entire year, and not just the month
of July 1997. She argues that since the present CFO took office, in
September 1995, she has been banned from acting responsibilities.
As a preliminary matter, we note that although complainant contends
on appeal that the alleged actions occurred over the span of several
years, we find that the instant complaint only addresses July 8, 1997
through July 23, 1997. In both her request for counseling and formal
complaint, complainant herself identified the July 1997 dates as the
dates of the allegedly discriminatory events. Moreover, on November 26,
1997, the agency sent complaint a �Notice of Acceptance of Discrimination
Complaint.� The letter, which cited July 8, 1997 through July 23, 1997,
advised complainant to notify the agency within five calendar days if
she disagreed with the identification of the accepted issue. There is
no evidence in the record that complainant expressed any dissatisfaction
with the framing of the claim. Consequently, the Commission will address
the alleged discriminatory acts of July 1997.
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 complainant to prevail, he 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. See 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. See 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. See 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
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See 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 the instant case, we find that the agency has articulated a legitimate,
nondiscriminatory reason for its action. The CFO attested that he was
in the office during July 8 through July 17, 1997, so there was no need
to have anyone act in his place. He acknowledged that between July 18
and July 26, 1997, he was out of the office and designated others to act
for him. During July 18 through July 22, 1997, the Financial Services
Director was the Acting CFO. The Budget Director served in the acting
position from July 23 through 25, 1997. According to the CFO, these
individuals were selected because they were the ranking employees.
The CFO explained that he would not allow a GS-14 to act when he has
two other GS-15s available. The CFO reasoned that he was following
the chain of command, and that if the GS-15s were not available he would
have selected complainant or another GS-14 employee. The CFO noted that
consistent with this practice, during the holiday season he designated
complainant to act because the GS-15s were not available.
In an effort to show pretext, complainant argued that the prior CFO
allowed her act in her place. The Commission finds, however, that even if
complainant's assertion is true, this does not establish that the CFO's
articulated reason was pretext for discrimination. The record does not
indicate that the present CFO was required to follow the practices of the
former CFO. Morever, as noted by the agency, �managers, in most instance,
have discretion to choose the employees who will act in their stead.� In
addition, we note that one of the GS-15s designated to act for the CFO,
the Financial Services Director, is a member of complainant's protected
classes. Therefore, we find that complainant has failed to establish
that, more likely than not, the agency's articulated reasons were a
pretext for discrimination.
Complainant also claims she was discriminated against when Employee A
was designated the Acting Budget Director on July 18, 1997, while she
was not given such an opportunity. The agency responded by noting
that Employee A was assigned to the position of Budget Team Leader,
whose duties included acting in the place of the Budget Director.
As a Review Team Leader, complainant was not in an equivalent position.
The Commission finds that complainant has failed to provide evidence
that the agency's reason is pretext.
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, the Commission
AFFIRMS the agency's decision finding 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
November 20, 2001
__________________
Date