01970939
09-22-1999
Pamela Page, Appellant, v. William S. Cohen, Secretary, Department of Defense, Defense Contract Audit Agency,) Agency.
Pamela Page, )
Appellant, )
) Appeal No. 01970939
v. ) Agency No. C94-06
)
William S. Cohen, )
Secretary, )
Department of Defense, )
Defense Contract Audit Agency,)
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black), religion (Baptist), sex (female), and reprisal
(prior EEO activity) in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleges she
was discriminated against when she was removed from a collateral duty
assignment as an EEO counselor. For the following reasons, the agency's
decision is AFFIRMED.
BACKGROUND
The record reveals that during the relevant time period, appellant was
employed as an Auditor at the agency's General Dynamics/Lockheed Resident
Office in Fort Worth, Texas. Beginning in October, 1992, she was also
assigned to collateral duty as an EEO counselor. In January, 1994,
she was removed from her duties as an EEO Counselor but was retained in
her position as an Auditor.
Believing herself to be a victim of discrimination, appellant sought
EEO counseling and, subsequently, filed a complaint on May 17, 1994.
At the conclusion of the investigation, appellant requested that the
agency issue a final agency decision without a hearing.
The FAD concluded that appellant failed to establish a prima facie case of
discrimination based on race, sex or religion because she did not prove
by a preponderance of the evidence that similarly situated individuals
not in her protected classes were treated differently with respect to
an �employment benefit or opportunity� under similar circumstances.
The FAD also found that appellant failed to establish a prima facie
case of reprisal because she failed to show that her removal from her
EEO Counselor assignment constituted an �adverse employment action.�
Alternatively, the FAD concluded that appellant had not proven
discrimination because the agency had articulated a legitimate,
nondiscriminatory reason for its actions which appellant had been unable
to show was a pretext designed to conceal discrimination.
From the FAD, appellant brings the instant appeal.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), and its progeny, Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 253-56 (1981); St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993), and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases), the Commission finds that appellant failed to prove
by a preponderance of the evidence that the agency's articulated reasons
for its actions were pretexts for discrimination.<1>
In reaching this conclusion, we note that record evidence shows that,
in contravention of the agency's policy, and that of the Commission as
set forth in our Management Directive 110, appellant, in her role as
EEO counselor failed to maintain impartiality as between the employee
she was counseling<2> and the agency. Appellant abandoned the neutral
position EEO counselors are required to maintain and appeared to act as
an advocate for her counselee's position. In addition, appellant did not
fully disclose to her supervisory EEO Officer the nature of her personal
relationship with the counselee in question. These constitute legitimate,
nondiscriminatory reasons for the agency's actions. Appellant has failed
to show them to be pretextual.
CONCLUSION
Therefore, 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 AFFIRM the FAD.
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 (3O) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (2O) 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 (2O) 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:
9/22/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary where, as here, the agency has
articulated a legitimate, nondiscriminatory reason for its actions,
i.e., appellant's failure properly to perform her assigned duties.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether she has demonstrated by a
preponderance of the evidence that the agency's reason for its actions
was a pretext for discrimination. Id.; see also United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).
2In the course of her brief tenure as an EEO counselor, appellant had
occasion to counsel only one employee. It was appellant's performance
of her duties as counselor with respect to this employee that resulted
in appellant's removal from EEO counselor duties.