Pamela Page, Appellant,v.William S. Cohen, Secretary, Department of Defense, Defense Contract Audit Agency,) Agency.

Equal Employment Opportunity CommissionSep 22, 1999
01970939 (E.E.O.C. Sep. 22, 1999)

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.