01a51608
01-26-2006
Pamela D. Harris, Complainant, v. Dionel M. Aviles, Acting Secretary, Department of the Navy, Agency.
Pamela D. Harris,
Complainant,
v.
Dionel M. Aviles,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A51608
Hearing No. 110-2004-00225x
Agency No. 02-67004-009
DECISION
JURISDICTION
On December 14, 2004, complainant filed an appeal from the agency's
December 7, 2004 final order concerning her equal employment opportunity
(EEO) complaint alleging 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Budget Analyst, GS-560-9, with the Financial Management Branch (FMB)
at the agency's Marine Corps Logistics Base in Albany, Georgia. The other
Budget Analyst position within the FMB became vacant when complainant's
co-worker accepted another assignment. Management chose to rewrite and
upgrade the vacant position to the GS-11 level. Believing that she was
discriminated against, complainant contacted an EEO Counselor and filed
a formal EEO complaint, alleging discrimination on the bases of race
(African-American), color (black) and age (D.O.B. November 18, 1959)
when her position was not rewritten nor upgraded to the GS-11 level.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing.
After both parties submitted motions for a decision without a hearing,
the AJ assigned to the case issued a decision without a hearing on
September 30, 2004. The AJ found that the agency properly laid out the
undisputed facts of the case. The AJ stated that there was no genuine
issue of material fact. Therefore, he found that a decision without a
hearing was appropriate. The AJ then determined that complainant failed
to establish a prima facie case of discrimination. Specifically, the AJ
noted that complainant did not show that she was similarly situated to
her proffered comparators. In addition, the AJ stated that complainant
failed to cast doubt on the agency's legitimate, nondiscriminatory
reasons for its action.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged. Complainant appealed arguing that she and the co-worker
were not treated equally and that there is no need for her to establish
a prima facie case of discrimination.
ANALYSIS AND FINDINGS
A claim of disparate treatment based on indirect evidence 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. 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 complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. 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).
Upon review, we find that the AJ properly determined that there were
no material facts in dispute. The record indicates that the agency
provided legitimate, nondiscriminatory reasons for its action. The FMB
Head averred that, with the vacancy created by the co-worker's change
in position, she decided to craft a new position description for that
position. She believed that this would create some career progression
opportunities within the FMB and would develop the branch to best be
able to serve the needs of the agency's facility. The FMB Head also
indicated that she wanted the two Budget Analyst positions separated into
two entities in order to support the change in the Branch's mission and
function. Complainant failed to establish that the agency's reason was
pretext for discrimination. Therefore, we conclude that a preponderance
of the record evidence does not establish that discrimination occurred.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order.
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
January 26, 2006
__________________
Date
2
01A51608
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
01A51608