0120102519
09-24-2010
Patricia J. Hatter, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Patricia J. Hatter,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102519
Agency No. 200J-0550-2009102686
DECISION
BACKGROUND
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 28, 2010 final decision 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. For the reasons that follow, the Agency's decision is AFFIRMED.
Complainant, a WG-3 Food Service Worker, alleged that the Agency discriminated against her on the basis of race (Black) when in April 2009, she was denied leave for Easter Sunday, April 12, 2009.
In its decision finding no discrimination, the Agency concluded that it had not discriminated against Complainant. In so concluding, the Agency found that the denial of Complainant's leave request was the result of a scheduling error.
Because this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
A complainant may establish a prima facie case by presenting evidence which, if it were not explained, would reasonably give rise to an inference of reprisal. Shapiro v. Social Security Administration, EEOC Request No. 05960403 (December 6, 1996).
The prima facie inquiry may be dispensed with where the agency has articulated legitimate, nondiscriminatory reasons for its conduct. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
To ultimately prevail in a discrimination complaint, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson, supra; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). A complainant bears the burden of establishing that the agency's articulated reason is a mere pretext for discrimination. A complainant can do this either directly, by showing that a discriminatory reason more likely motivated the agency, or indirectly, by showing that the agency's proffered explanation is unworthy of credence. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).
We find that the Agency has articulated a legitimate, nondiscriminatory reason for its action, i.e., a scheduling error, and Complainant has failed to show by a preponderance of the evidence that the Agency's real reason was prohibited discrimination. We note that an agency may make a mistake and not incur liability under Title VII so long as there is no evidence to indicate that those mistakes were based on a complainant's protected classes. See Burdine, 450 U.S. at 259; Turner v. Texas Instruments, 555 F. 2d 1251-57 (5th Cir. 1977). Even if we accept Complainant's contention that the Agency officials lied, Complainant must link the lie or its creation to prohibited discrimination. Complainant has not done so.
At all times the ultimate burden of persuasion remains with complainant to demonstrate by a preponderance of the evidence that the agency's reasons were pretextual or motivated by intentional discrimination. Complainant has failed to do so.
CONCLUSION
The Agency's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 24, 2010
__________________
Date
2
0120102519
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102519
5
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