03990081
01-07-2000
Petitioner, )
Brenda Jones v. Department of Defense
03990081
January 7, 2000
Brenda Jones, )
Petitioner, )
) Appeal No. 03990081
v. ) MSPB No. DC0753980473
)
William S. Cohen, )
Secretary, )
Department of Defense )
Agency. )
)
DECISION
INTRODUCTION
On April 30, 1999, petitioner timely filed a petition with the Equal
Employment Opportunity Commission for review of the final decision of
the Merit Systems Protection Board dated March 30, 1999, concerning an
allegation of discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The MSPB found that
the Department of Defense had not engaged in discrimination as alleged
by petitioner. For the following reasons, the Commission CONCURS with
the decision of the MSPB.
ISSUE PRESENTED
The issue presented is whether the Board's determination that petitioner
failed to prove that the agency discriminated against her on the basis
of reprisal constitutes a correct interpretation of the applicable laws,
rules, regulations, and policy directives, and is supported by the record
as a whole.
BACKGROUND
A review of the record indicates that petitioner, formerly employed by
the agency as a Sales Store Checker, GS-3, was terminated, effective
March 23, 1998, for exhibiting disrespectful conduct toward customers.
One customer, for example, testified that petitioner snapped at her.
When the customer informed petitioner that she was being rude,
petitioner did not apologize or offer an explanation. The agency
produced a written statement from another customer which indicated
that petitioner's agitation and yelling caused that customer to leave
the store without paying. On another occasion, when engaged in a
disagreement with a customer regarding pricing, petitioner failed to
follow store procedures. In determining whether to terminate petitioner,
the agency considered her past disciplinary record which consisted of
three suspensions during the preceding 18 months. The petitioner denies
having engaged in disrespectful conduct. Instead, she alleges, among
other things, that she was terminated in retaliation for her previous
engagement in the EEO process (i.e., the filing of a formal complaint).
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board with
respect to the allegation of discrimination based on reprisal constitutes
a corrective interpretation of any applicable law, rule, regulation or
policy directive and is supported by evidence in the record as a whole.
29 C.F.R. �1614.305(c).
After carefully considering the facts of this case, we find that the
Board was correct in concluding that petitioner has not proven that she
was discriminated against on the basis of reprisal. In the absence
of direct evidence, a claim of discrimination is examined under the
three-part analysis originally enunciated in McDonnell Douglas Corporation
v. Green. 411 U.S. 792 (1973). For petitioner 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. Id. 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
action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the petitioner 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).
In order to establish a prima facie case of discrimination for an
allegation of reprisal, petitioner must prove the existence of four
elements: (1) that she engaged in protected activity, e.g., participated
in a Title VII proceeding; (2) that the alleged discriminating official
was aware of the protected activity; (3) that she was disadvantaged
by an action of the agency contemporaneously with or subsequent to
such participation; and (4) that there is a causal connection between
the protected activity and the adverse employment action. Hochstadt
v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass), aff'd, 545 F.2d 222 (1st Cir. 1976); see also Mitchell
v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985); Burris v. United Telephone
Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 1982), cert. denied,
459 U.S. 1071 (1982).
Although the initial inquiry in a discrimination case usually focuses
on whether the petitioner has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the petitioner has
established a prima facie case to whether she has demonstrated by
a preponderance of the evidence that the agency's reasons for its
actions merely were a pretext for discrimination. Id.; see also United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-717 (1983). We find that the agency has articulated legitimate,
nondiscriminatory reasons for its action. Specifically, the agency
contended that petitioner was removed from the agency for repeatedly
exhibiting disrespectful conduct towards customers.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, petitioner now bears the burden
of establishing that the agency's stated reason is merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Appellant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In this case,
petitioner has failed to meet that burden. The only evidence that
petitioner offered to support her claim of reprisal is that she filed
an informal complaint of discrimination on February 27, 1998, which,
at the time of her removal, was pending informal counseling. While that
evidence is sufficient to support a prima facie case of discrimination,
it is not sufficient to prove that the agency's articulated reason
constitutes an effort to mask discriminatory animus.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the Board's final
decision finding no discrimination. The Commission finds that the
Board's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
STATEMENT OF RIGHTS - ON APPEAL
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W1199)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of 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.
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:
Jan 7, 2000
DATE Carlton 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 petitioner, petitioner's representative
(if applicable), and the agency on:
________________________ _______________________