03a10043
03-30-2001
Cheryl A. Haffarnan, Petitioner, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Cheryl A. Haffarnan v. Department of Army
03A10043
March 30, 2001
.
Cheryl A. Haffarnan,
Petitioner,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 03A10043
MSPB No. CH-0351-99-0380-I-1
DECISION
INTRODUCTION
On December 29, 2000, Cheryl A. Haffarnan (petitioner) timely filed a
petition with the Equal Employment Opportunity Commission (the Commission)
for review of the final order of the Merit Systems Protection Board (MSPB)
issued November 29, 2000, concerning her allegations of discrimination
based on disability (hearing impaired) in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The petition is governed by 29 C.F.R. � 1614.303 et seq.
The MSPB found that 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 MSPB's determination that petitioner
failed to prove that the agency discriminated against her based on
disability when it separated her from service under a reduction-in-force
(RIF) constitutes a correct interpretation of the applicable laws, rules,
regulations, and policy directives and is supported by the record as a
whole.
BACKGROUND
During the period in question, petitioner was a Computer Assistant,
GS-07 with the agency at its Rock Island, IL facility (facility).
In March 1999, the agency conducted a RIF at the facility due to a
reorganization which was caused by the facility's loss of its mission as
a regional computer megacenter. All approximately 130 positions in the
old organization were abolished and 74 positions were created in the new
organization, all of which were considered �vacant� for RIF purposes.
In a Mid-Contract Bargaining Agreement (Agreement), the agency and
the union agreed that, in conducting the RIF, the agency would use
the 74 vacant positions to the maximum extent possible to prevent an
adverse impact on employees effected by the RIF. The agreement also
provided, in pertinent part, at a particular stage of the RIF, that the
agency would waive qualifications when it could be determined that the
employee could perform the duties of the position within 90 days and
that the agency would create at least seven vacant �upward mobility�
positions within the new organization. Even in waiving qualifications,
the goal of the agency would still be to find the best match possible
for a vacant position. In addition, the �upward mobility� positions
were subject to competitive procedures and were not part of the RIF.
Petitioner's position was abolished but she was not placed in any one
of the vacant positions of the new organization and she was not selected
for an �upward mobility� position.
Petitioner filed a mixed case appeal<1> alleging unlawful employment
discrimination on the basis of disability (hearing impaired). Petitioner
stated that she was qualified for three vacant positions of a clerical
nature in the new organization and that she would have been placed in one
of the positions had the agency complied with the Agreement by waiving
qualifications and determining that she could perform the duties of
the position within 90 days. Petitioner stated further that she should
have been placed in an �upward mobility� position and that the agency
violated statutory RIF guidelines.
The agency stated that the placement process used to lessen the adverse
impact of the RIF was neutral. Specifically, the agency stated that an
independent office, the Civilian Personnel Operations Center, made the
qualification determinations for the vacant positions using an automated
system and petitioner was found not qualified for the vacant positions
she sought. The agency stated further that persons selected for the
�upward mobility� positions were chosen by competitive procedures.
After an MSPB hearing<2> on the matter, an Administrative Judge
(AJ) issued an initial decision finding that the MSPB did not have
jurisdiction to review petitioner's non-selection for the �upward
mobility� position and that petitioner failed to establish that the
legitimate, nondiscriminatory reasons the agency articulated for
petitioner's non-selections for the vacant positions were pretextual.
The AJ found no discrimination based on disability and affirmed the
agency's action. Petitioner subsequently filed a petition for review to
the Board, which was denied. This petition to the Commission followed.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the MSPB with
respect to the allegation of discrimination based on disability
constitutes a correct interpretation of any applicable law, rule,
regulation or policy directive and whether said decision is supported
by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
When a petitioner relies on circumstantial evidence to prove an agency's
discriminatory intent or motive, there is a three step, burden-shifting
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The initial burden is on the petitioner to establish a prima facie
case of discrimination. Id. at 802. The burden then shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Id. If the agency is successful, the petitioner
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext for
discrimination. McDonnell Douglas, 411 U.S. at 804. This analysis is
applicable to petitioner's claim of disability discrimination. For the
purpose of this decision, the Commission will assume without finding
that petitioner is a qualified individual with a disability.
Because the agency articulated a legitimate, nondiscriminatory reason for
its action ( i.e., a facility-wide RIF and a neutral placement process),
we may proceed directly to determining whether petitioner satisfied
her burden for showing pretext. Haas v. Department of Commerce, EEOC
Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service Board
v. Aikens, 460 U.S. 711, 713-14 (1983)). Petitioner may do this in one
of two ways, either directly, by showing that a discriminatory reason
more likely motivated the agency, or indirectly, by showing that the
agency's proffered explanation is unworthy of credence. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the petitioner that the agency's
articulated reason was false and that its real reason was discriminatory.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
Petitioner, in attempting to prove her burden, merely asserted that
were it not for a discriminatory motive based on her disability
she would have been placed in one of the newly vacant positions in
the new organization. The record does not support her contention.
Petitioner failed to establish pretext. The Commission finds that
the agency did not discriminate against petitioner on the basis of her
disability regarding the vacant positions.
We further note that pursuant to 29 C.F.R. � 1614.302, the agency is
required to process the allegation involving petitioner's non-selection
for an �upward mobility� position as a �non-mixed� matter. The agency
shall notify petitioner of the right to contact an EEO counselor within 45
calendar days of receipt of this decision, and to file an EEO complaint,
subject to � 1614.107. The date on which the petitioner filed the appeal
with the MSPB shall be deemed the date of initial contact with the EEO
counselor, unless she contacted a counselor earlier.
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 PETITIONER'S RIGHTS
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 30, 2001
__________________
Date
1A mixed case appeal is an appeal filed with the MSPB that alleges
that an appealable agency action was effected, in whole or in part,
because of discrimination on the basis of race, color, religion, sex,
national origin, disability or age. 29 C.F.R. � 1614.302 (a)(2).
2Petitioner's MSPB appeal was consolidated for hearing only with the
appeals of six other employees effected by the facility's RIF.