Vickie D. Fox, Complainant, Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 30, 1999
01976485 (E.E.O.C. Nov. 30, 1999)

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.