01986503
04-26-2000
Patricia A. Lewis, Complainant, William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Patricia A. Lewis v. Department of Defense
01986503
April 26, 2000
Patricia A. Lewis, )
Complainant, )
) Appeal No. 01986503
) Agency No. HC-97-013
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
)
DECISION
INTRODUCTION
On August 28, 1998, Patricia A. Lewis (the complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated July 15, 1998, concerning her
complaint 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>
Complainant received the FAD on August 1, 1998. 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
The issue on appeal is whether the agency properly determined that
complainant failed to prove that the agency discriminated against her
based on race when she was denied the opportunity to compete for a
one-year developmental assignment.
BACKGROUND
Complainant was employed by the agency as a Budget Analyst, GS-13, at
the agency's Headquarters at Fort Belvoir, Virginia. In January 1997,
her supervisor (S-1) notified her team that two one-year developmental
assignments were available at the Office of the Under Secretary of
Defense at the Pentagon. The complainant was interested in applying
for one of these details and prepared an application package which
S-1 approved and sent to the Deputy Comptroller of the agency (S-2)
for her endorsement so that it could be forwarded for consideration.
S-2 refused to endorse the application package, and it was not submitted
for consideration. The reasons S-2 gave for not endorsing it were: 1)
there was not a developmental need identified that could only be satisfied
by an assignment of this nature; 2) complainant did not appear to meet
the qualifications of the assignment; and 3) the organization could not
afford to have complainant on detail for one year and still pay her
salary, because they would not be able to replace her for that year,
and S-2 was concerned about managing the workload.
Complainant initiated EEO Counseling on April 3, 1997. She filed a
formal complaint on August 12, 1997, alleging discrimination on the
basis of race (African-American) when she was denied the opportunity to
compete for a one-year developmental assignment at the Office of the
Under Secretary of Defense at the Pentagon. The agency accepted the
complaint for investigation and processing. At the conclusion of the
investigation, the agency issued a copy of its investigative report and
notified complainant of her right to request an administrative hearing.
After complainant requested a final agency decision on the record,
the agency issued its FAD on July 15, 1998.
In its FAD, the agency found that the complainant had failed to establish
a prima facie case of race discrimination because she was unable to
demonstrate that any similarly situated individuals not of her race
were treated more favorably. The FAD further stated that complainant
had failed to establish that the legitimate, nondiscriminatory
reasons articulated by the agency for its decision were pretext for
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). 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).
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 claims of discrimination, the agency
presented the testimony of S-2, who explained her reasons for declining
to endorse complainant's application. Her first reason, that there was
not a developmental need identified that could only be satisfied by an
assignment of this nature, she explained by stating that complainant's
Individual Development Plan (IDP) did not identify a specific need
for her to do a year-long detail at this particular organization.
Complainant submitted to S-2, during the consideration process, a revised
IDP that specified how this detail was needed for her long-term career
development, which S-2 claimed to take into consideration, but it did
not affect her decision not to endorse the application. Regarding S-2's
second reason, that complainant did not appear to meet the qualifications
of the assignment, S-2 stated that the detail required a technical
degree, which complainant did not have. Her third reason was that the
organization could not afford to have complainant on detail for one year
and still pay her salary, because they would not be able to replace
her for that year, and S-2 was concerned about managing the workload.
We find that the agency has articulated legitimate, nondiscriminatory
reasons for its action.
Since the agency articulated legitimate, nondiscriminatory reasons for
its action, the burden returns to the complainant to demonstrate that
those reasons were pretext for discrimination. We find that complainant
has failed to do so. Complainant argued that S-2 was incorrect when she
stated that complainant's IDP did not reflect the need for a developmental
assignment of this type, and stated that her application package had
always included the updated IDP (as opposed to the older one). We find
that regardless of which IDP was initially submitted, S-2 testified that
she took into account the more recent version when she made her decision.
She also testified it did not affect her bottom line decision not to
endorse the application.
Complainant also argued that the position she had applied for did
not require a technical degree, and that she was qualified for the
position. There were two positions advertised, OSD 97-04 and OSD 97-06.
Complainant argued that OSD 97-04 required the technical degree but OSD
97-06 did not. She applied for OSD 97-06. An examination of the record
reveals that the application package submitted to S-2 for consideration
included the information on OSD 97-06 and reveals that the information
appears to indicate that a technical degree was required for OSD 97-06.
Complainant claimed, and S-1 testified, that she had asked S-1 to call
the Office of the Under Secretary (the Office) to find out how flexible
they might be about this requirement. S-1's testimony indicated that
the Office would at least consider complainant's application even though
she did not have a technical degree and he endorsed it on this basis.
This information from the Office on the necessity of a technical degree
was not noted in the application package S-2 considered. We find that
S-2 reasonably thought that a technical degree was required for the
position and that her non-endorsement of the application on this basis
has not been shown to be a pretext for discrimination.
Complainant finally argued that S-2's reason that it would be a
hardship to the agency for her to be on detail for a year was a
pretext for discrimination. On appeal, complainant provided the names
of two employees who had done developmental details who were not of
her protected class. She stated that she felt that the agency had a
pattern of promoting the developmental needs of white employees while
discouraging those of minorities. In response, S-2 testified that she
had not approved any developmental details of this length where the
agency was responsible for paying an employee's salary and expenses
while at another location. S-2 testified that she had not approved the
developmental assignments of the employees noted by complainant and that
the one employee had been approved only after he appealed to a management
level above S-2. S-2 stated the second employee had been approved before
her arrival at the agency. We find that complainant has not shown that
S-2 was incorrect in her assessment that it would be a hardship for the
agency to support her on detail and that S-2 was wrong to be concerned
about workload issues while complainant would be at another location.
Therefore, the agency's determination that complainant failed to establish
that she was discriminated against was correct.<2>
CONCLUSION
Accordingly, the decision of the agency was proper and is 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
04-26-00 __________________________________
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 We find that the agency erred to the extent that it found that
complainant had not established a prima facie case of race discrimination
because she was unable to demonstrate that she was treated less favorably
than any similarly situated employee. We note that to establish a prima
facie case, complainant must only present evidence which, if unrebutted,
would support an inference that the agency's actions resulted from
discrimination. Furnco, 438 U.S. at 576. It is not necessary for
the complainant to rely strictly on comparative evidence in order to
establish an inference of discriminatory motivation necessary to support
a prima facie case. O'Connor v. Consolidated Coin Caterers Corp.,
116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caterers Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).