03990130
07-14-2000
Petitioner, )
Venita A. Salley v. Office of Personnel Management
03990130
July 14, 2000
Venita A. Salley, )
Petitioner, )
) Appeal No. 03990130
v. ) MSPB No. CH-0731-99-0055-I-1
)
Janice R. Lachance, )
Director, )
Office of Personnel Management, )
Agency. )
)
DECISION
INTRODUCTION
On July 26, 1999, Venita A. Salley (hereinafter referred to as petitioner)
timely filed a petition with the Equal Employment Opportunity Commission
(the Commission) for review of the Opinion and Order of the Merit Systems
Protection Board (MSPB) issued July 2, 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 Office
of Personnel Management (the agency) had not engaged in discrimination
as alleged by petitioner. For the reasons that follow the Commission
concurs with the decision of the MSPB.
ISSUE PRESENTED
The issue presented is whether the agency discriminated against petitioner
when it found her unsuitable for employment.
BACKGROUND
The agency found petitioner unsuitable for employment as a Benefits
Authrorizer at the Social Security Administration for failing to
meet fundamental standards for honesty and trust required for her
employment.<1> The agency based this action after it conducted an
investigation of an incident which occurred on August 5, 1997. On that
day, petitioner allegedly took a federal clerical examination under
an assumed name and submitted false and misleading information when
questioned by examiners.<2> Petitioner appealed the agency's decision
finding her unsuitable for continued federal employment to the MSPB.
The hearing was held on March 16, 1999. The MSPB AJ sustained the
agency's suitability determination and found that petitioner failed to
establish a prima facie case of discrimination.
Petitioner appealed the MSPB's decision to the full Board. The full Board
ultimately sustained the suitability determination of the agency. On the
issue of discrimination on race and color, the Board found that petitioner
did not provide any new, previously unavailable, evidence. Therefore,
the Board made the same finding with regard to the allegation of
discrimination and upheld the previous decision. Petitioner submitted no
new contentions in her petition for review submitted to the Commission.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board
with respect to the allegation of discrimination based on race
(African-American) and color (Black) constitutes a correct 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).
Petitioner's allegation of race and color discrimination constitutes
a claim of disparate treatment which is properly analyzed under the
three-tier order and allocation of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981). Applying this legal standard,
petitioner may establish a prima facie case of race discrimination by
showing that she is in the protected group, and was treated less favorably
than other similarly situated employees outside her protected group.
The absence of comparative evidence may be overcome if petitioner sets
forth some evidence of agency actions from which, if otherwise explained,
an inference of discrimination can be drawn. See EEOC Enforcement
Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice
No. 915.002 (September 18, 1996).
The Commission finds that petitioner failed to establish a prima facie
case of race discrimination. Although petitioner established that she is
a member of the protected group by virtue of her race (African-American)
and color (Black), she failed to show that she was treated differently
than any employee who was charged with taking an examination under an
assumed name and submitting false information when questioned about her
participation in the examination. Further, petitioner has not presented
other evidence to support an inference of race or color discrimination.
Assuming, arguendo, that petitioner established a prima facie case, the
agency articulated a legitimate nondiscriminatory reason for its decision.
The agency stated that it found petitioner unsuitable for employment for
failing to meet fundamental standards for honesty and trust required
for her employment with the Social Security Administration due to the
incident on August 8, 1997.
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 final decision
of the MSPB which found that the agency did not discriminate against
petitioner. 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 PETITIONERS' RIGHTS
PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)
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 (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:
July 14, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency's decision became effective on July 31, 1998, the day that
petitioner was removed from her position at the Social Security
Administration pursuant to the agency's directive.
2The investigation revealed that petitioner requested an admission slip
for the August 5, 1997 clerk examination. Petitioner was present at the
examination where she made marks on the test answer sheet. She signed and
wrote an another individual's name on the answer sheet. Petitioner was
questioned regarding the discrepancy between the name she used on the
admission slip and the name on the answer sheet. During questioning,
petitioner claimed that she was present to support a friend who was
taking the test. She later alleged that she was taking the exam for
her brother who had failed the exam before. The investigation indicated
that the individual was not her brother but her spouse.