03990103
12-17-1999
Petitioner, )
Mattie J. Tippitt v. Tennessee Valley Authority
03990103
December 17, 1999
Mattie J. Tippitt, )
Petitioner, )
) Appeal No. 03990103
v. ) MSPB No. AT0351981064I1
)
Craven H. Crowell, Jr., )
Chairman, )
Tennessee Valley Authority, )
Agency. )
)
DECISION
INTRODUCTION
On June 15, 1999, petitioner timely filed a petition with the Equal
Employment Opportunity Commission for review of the final decision
of the Merit Systems Protection Board (MSPB) dated May 14, 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. �621 et seq. The MSPB found that the Tennessee Valley Authority
(agency) 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 MSPB's determination that petitioner
failed to prove that the agency discriminated against her on the bases
of race (Afro-American), sex (female), age (56), and reprisal (prior EEO
activity) 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, employed by the agency
as an Engineering Associate - Welding, SE-5, was informed on June 23,
1995 that her job had been identified as at-risk and was targeted
for surplus due to budget reductions. She was also informed that,
as a result, she was being transferred to another part of the agency,
effective September 18, 1995, with her job title and pay grade intact.
Approximately one year later, on June 24, 1996, petitioner was informed
that, due to a shortage of funds, she was being terminated from her
position effective September 30, 1996.
Petitioner believes that race, sex, and age were factors in the
elimination of her job because she was replaced by White male contractors
who were younger than she. She also believes that reprisal was a
factor in the decision to eliminate her job. According to her, she
first contacted the EEO office in September 1990 because she was not
selected for a promotion. She stated that her previous participation
in the EEO process prevented her from getting trained or promoted, and
but for the fact that she was denied training and promotion, she would
have been more marketable in a reduction in forced (RIF) situation.
The agency denied that petitioner's termination was based on race, age,
sex, and/or reprisal. According to the agency, over 200 employees were
terminated from their positions as of September 30, 1996. The agency
pointed out that, as a result of the mass termination, both of the
persons employed as Engineering Associates - Welding, SE-5s, one of
which was petitioner, were let go.
ANALYSIS AND FINDINGS
The Commission must determine whether the MSPB's decision, regarding
the allegation of discrimination based on race, sex, age, and 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).
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). See, Hochstadt
v. Worcester Found. for Experimental Biology, Inc., 425 F.Supp. 318
(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases); see also, Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979) (applying McDonnell Douglas to age cases). 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).
Reprisal
In order to establish a prima facie case of discrimination for an
allegation of reprisal, petitioner must show 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 contemporaneous 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., Id.; 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).
Like the Board, we find that petitioner failed to establish a prima
facie case of reprisal. Specifically, we find that the petitioner did
not establish the existence of the fourth element. Because her prior
EEO activity occurred in 1990, and the discriminatory event, i.e.,
termination, in this case occurred six years later, we conclude that
there is no causal connection between the protected activity and the
adverse employment action. Consequently, because all four elements
must be proven in order to establish a prima facie case, we decline to
consider whether or not petitioner proved the existence of the first,
second, and third elements.
Race, Sex, and Age Discrimination
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
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).
In this case, the Commission finds that the agency has articulated a
legitimate, nondiscriminatory reason for its action. Specifically,
the agency contended that petitioner's job was terminated due to budget
concerns.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, 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). Petitioner 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)). We find that
petitioner has failed to meet that burden. The file contains evidence
which indicates that over 200 employees were terminated on the same day
as petitioner. The file also shows that the one other employee who held
the same position as petitioner was terminated as well. Consequently,
we find that petitioner failed to show that the reason articulated by
the agency was a pretext for discrimination.
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 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:
Dec. 17, 1999
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 petitioner, petitioner's representative
(if applicable), and the agency on:
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