Patricia A. Lewis, Complainant, William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionApr 26, 2000
01986503 (E.E.O.C. Apr. 26, 2000)

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).