01983385
01-12-2000
Phyllis P. White, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Phyllis P. White, )
Complainant, )
) Appeal No. 01983385
v. ) Agency No. AT-94-27
)
Andrew M. Cuomo, )
Secretary, )
Department of Housing and Urban )
Development, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black), religion (Jehovah's Witness), and reprisal (prior
EEO activity), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges she was
discriminated against on the basis of her religion when on May 3, 1994,
she was denied Administrative Leave (AL) to vote while other employees
who did not vote were granted AL. Complainant further claims that due
to her race, she was denied the opportunity to receive training, and
that she was issued a written reprimand for being absent from her duty
station for lengthy periods without permission, in reprisal for prior
EEO activity. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was
employed as a GS-5 Mortgage Servicing Clerk at the agency's Memphis,
Tennessee field office. Complainant contends that although she was
initially given AL to vote, when she informed her timekeeper that due
to her religious beliefs she was forbidden from voting, the timekeeper
revoked her voting leave. Complainant further claims that on May 25
and 26, 1994, a less senior white female was selected for training to
back-up the office's Automated Technology Administrator (ATA), while
complainant was not selected. She further contends she was discriminated
against due to reprisal when, on May 26, 1994, she was issued a reprimand
memorandum by her supervisor (CS) after she left her desk to meet with
the office's EEO Counselor without prior permission. Believing she
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint on August 23, 1994. At the conclusion
of the investigation, complainant requested that the agency issue a FAD.
The FAD initially found that complainant established a prima facie
case of race discrimination, as she was not given the opportunity to
receive training or assignment to higher level work while a similarly
situated white employee was given such training. The FAD then found
that complainant established a prima facie case of reprisal, as she
demonstrated that she participated in prior EEO activity which the agency
knew about, and subsequently received the reprimand memorandum in such
time and manner that there was a causal connection between the adverse
action and the prior EEO activity. The FAD further found that complainant
failed to establish a prima facie case of religious discrimination, as
the other employees who were given time off to vote were not similarly
situated to complainant because their religion did not forbid them from
voting and they presumably used their AL to vote.
Regarding complainant's claim of race discrimination, the FAD found
that the agency articulated a legitimate, nondiscriminatory reason for
its action, namely, that the Acting Area Coordinator (AAC) stated that
selection for the computer training to back-up the office's ATA was based
on the selectee's advanced knowledge of computers, and the selectee was
only designated as a back-up to the ATA on a volunteer basis with no
additional compensation or grade change. In addition, the AAC testified
that after the selectee left the office, a qualified Black female was
chosen to receive the training to back-up the ATA. The FAD further found
that the agency articulated a legitimate, nondiscriminatory reason for
issuing the reprimand, namely, that it was issued by CS as a follow-up
to a conversation she had with complainant on May 10, 1994, regarding
extended absences from her desk without prior supervisory permission.
The FAD found that complainant failed to establish that the agency's
articulated reasons for the denial of training and the reprimand were
a pretext for discrimination. Complainant has made no contentions on
appeal, while the agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation
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), the Commission agrees with the agency that complainant failed
to establish a prima facie case of religious discrimination, as she
failed to demonstrate that there were similarly situated employees whose
voting leave was approved after they informed the timekeeper that their
religious beliefs precluded them from voting. We further agree with the
FAD that the agency articulated legitimate, nondiscriminatory reasons
for not selecting complainant for the computer training in question
and for issuing the reprimand. The Commission also agrees with the
FAD's finding that the agency's reasons were not pretextual in nature.
In so finding, we note that complainant failed to demonstrate that
her computer qualifications were superior to those of the selectee,
or that the reprimand memorandum was issued for any reason other than
that complainant failed to receive supervisory approval to be away from
her duty station to meet with the EEO Counselor after previously being
instructed by CS to receive such permission for absences longer than
fifteen (15) minutes. As a result, we find no reason to disagree with the
FAD's finding of no discrimination. Therefore, after a careful review
of the record, and arguments and evidence not specifically addressed in
this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
January 12, 2000
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
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.