01976485
11-30-1999
Vickie D. Fox, Complainant, Louis Caldera, Secretary, Department of the Army, Agency.
Vickie D. Fox v. Department of the Army
01976485
November 30, 1999
Vickie D. Fox, )
Complainant, )
) Appeal No. 01976485
) Agency No. BQECFO9602G0080
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
INTRODUCTION
On August 26, 1997, Vickie D. Fox (complainant) timely filed an appeal
with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated July 22, 1997, concerning her
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1>
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against
her based on reprisal when she was denied a year-end monetary award and
when a job description was written in such a way as to discourage her
from applying for the vacancy.
BACKGROUND
Complainant was employed by the agency as a Purchasing Agent, GS-1105-05,
with the Directorate of Contracting at Fort McClellan, Alabama.
She filed a formal complaint on March 4, 1996, alleging discrimination
on the basis of reprisal (prior EEO activity). Complainant alleged
that the agency had discriminated against her when she was denied a
year-end monetary award and when a GS-6 position was advertised as a
temporary position with certain functions added to the job description
to prevent her from applying for the position. The agency accepted the
complaint for investigation and processing. At the conclusion of the
investigation, the agency issued a copy of its investigative report and
notified complainant of her right to request an administrative hearing.
Complainant timely requested a hearing before a Commission Administrative
Judge, but in a letter dated October 9, 1996, she withdrew that request
and asked that the agency issue its final decision on the record.
The agency issued its FAD on July 22, 1997.
In its FAD, the agency found that the complainant had failed to establish
a prima facie case of reprisal discrimination because she was unable to
demonstrate that there was a causal connection between her protected
activity and the agency's actions, and the adverse action did not
occur within such a period of time that a retaliatory motivation could
be inferred. The FAD further stated that complainant had failed to
establish that the legitimate, nondiscriminatory reasons articulated
by the agency for its decision were a pretext for discrimination.
This appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant 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.
McDonnell Douglas, 411 U.S. 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 actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant 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).
To establish a prima facie case of reprisal, an complainant must
show that: 1) she was engaged in protected activity; 2) the alleged
discriminating officials were aware of the protected activity; 3)
the complainant was subsequently subjected to adverse treatment;
and 4) the adverse action followed the protected activity within
such a period of time that retaliatory motivation may be inferred.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976);
Manoharan v. Columbia University College of Physicians and Surgeons,
842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould, 808 F.2d 493, 500
(6th Cir. 1987); Frye v. Department of Labor, EEOC Request No. 05940764
(December 15, 1994).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In response to complainant's claims of discrimination, the agency
presented evidence that complainant received a time-off award, rather than
a year-end monetary award. Complainant's first-level supervisor stated
that complainant had received the time-off award instead of a year-end
monetary award because she had done nothing above her ordinary duties,
and that other personnel often needed to help complainant complete
her assigned duties. Regarding the complainant's allegations that
the advertised GS-6 position had been structured in such a way as to
discourage or prevent her from applying for it, the agency explained each
aspect of the position that complainant was contesting. The agency had
advertised the position as a temporary position, which the complainant
claimed was done to discourage her from applying for the promotion.
The agency responded by noting that the position was initially supposed to
be a permanent position but that the activity's commander had instituted
a policy in which only safety, health, and security positions could
be filled on a permanent basis because the activity was projected to
be closed; therefore, the position in question had to be advertised
as temporary. The complainant also claimed that the position had a
50 pound lifting requirement because her supervisors knew that she was
unable to meet that requirement due to a medical condition. The agency
replied that the position had a lifting requirement (which was actually 40
pounds) because complainant's supervisors wished to be able to continue
to accommodate complainant's medical condition, which prevented her from
lifting heavy objects. Because complainant's department still needed
someone who could make distribution deliveries and pick up reproduction
jobs, which often came in large boxes (duties which were technically
part of complainant's job description), complainant's supervisors felt
that they had to add the lifting requirement to the GS-6 position so that
complainant could continue to be accommodated. We find that the agency
has articulated legitimate, nondiscriminatory reasons for its actions.
Since the agency articulated legitimate, nondiscriminatory reasons for
its actions, the burden returns to the complainant to demonstrate that the
agency's articulated reasons were a pretext for discrimination. We find
that complainant has failed to do so. Complainant made no argument on
appeal or during the course of her complaint which would show that the
agency's reasons were pretext for discrimination, or that the agency was
acting on the basis of reprisal, and we find no evidence to support her
allegations in the record. Therefore, the agency's determination that
complainant failed to establish that she was discriminated against was
correct.
Accordingly, the decision of the agency was proper and is AFFIRMED.
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:
Nov. 30, 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 complainant, complainant's representative
(if applicable), and the agency on:
_________________________ _________________________
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.