01A00443
04-04-2001
Pamela J. Taylor, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Pamela J. Taylor v. Department of the Interior
01A00443
April 4, 2001
.
Pamela J. Taylor,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A00443
Agency No. LLM-97-055
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that she was discriminated against on the bases of physical
disability (dwarfism, four foot, three inches tall) and sex (female) when
complainant was not given the assignment of Applications Administrator
for the new Automated Fluid Minerals Support System (AFMSS). For the
following reasons, the Commission AFFIRMS the agency's final decision.<1>
The record reveals that complainant, an Automated Inspections Records
System (AIRS)<2> Data Entry Clerk (DEC), at the agency's Jackson,
Mississippi District Office, filed a formal EEO complaint alleging that
the agency had discriminated against her as referenced above. At the
conclusion of the investigation, complainant was provided a copy of the
investigative report. Complainant requested that the agency issue a
final decision.
In its final decision, the agency found that complainant failed to
establish a prima facie case of sex discrimination because she failed
to show that she was treated differently from similarly situated persons
outside of her sex. As to complainant claim of disability discrimination,
the agency noted that there is no evidence within the record to establish
that complainant is a qualified individual with a disability, however,
the agency made no determination on the issue of whether complainant
is covered by the Rehabilitation Act. Instead, the agency found
that complainant failed to establish a prima facie case of disability
discrimination because she failed to show that she was treated differently
from similarly situated persons outside of her protected class. Assuming
for argument's sake that complainant established her prima facie case of
disability and sex discrimination, the agency's decision found that it
had articulated legitimate, nondiscriminatory reasons for its actions.
Further, it determined that complainant failed to demonstrate that its
reasons were pretext.
On appeal, complainant contends that the agency was aware of her
disability due to the evident nature of her condition and her hiring
under the schedule �A� program. Further, complainant claims that the
agency wanted to put complainant out of her job based on her disability.
The agency requests that we affirm its FAD.
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, s/he 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.<3>
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).
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. United States
Postal Serv. Bd. 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 Serv.,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of this decision, the Commission assumes that complainant
established a prima facie case of sex and disability discrimination.
Therefore, the burden shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Here, in response to
complainant's claims of discrimination, the agency presented evidence
that it decided to fill the Applications Administrator duties with a
GS-12 petroleum engineer rather than with complainant. The Assistant
District Manager chose a petroleum engineer based on his perception of
the new system and how it would be different from the AIRS system and
his belief that the position represented a collateral duty rather than a
new position. In particular, the Assistant District Manager noted that
the new system covered the total field operations for the Oil and Gas
Program<4> while the old system was restricted to the field inspection
aspect of the Oil and Gas Program. The Manager stated that he was
aware that other offices were using AIRS DEC's for the Applications
Administrator, however, it was his understanding that those DEC's had
experience in more than one area and had a broader range of knowledge
about the total Oil and Gas Program. Further, the Manager averred
that he selected the petroleum engineer based on his broad knowledge
and experience with the total program rather than complainant who had
strictly focused on inspections and enforcement. We find that the agency
has articulated legitimate, nondiscriminatory reasons for its action.
Since the agency articulated legitimate, nondiscriminatory reasons
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reasons were pretext for discrimination.
Complainant argues that based on a survey of other agency facilities,
ninety percent of them used AIRS DEC's as their Applications
Administrators under the new AMFSS system and would retain DEC's under
the renamed the position of AMFSS DEC. Further, complainant claims that
the Applications Administrator is a single position and is not a job for
a GS-12 petroleum engineer. However, the District Manager averred that
complainant's facility is far more complex than other agency facilities
and therefore needed someone who had a broad knowledge of the Program.
Further, the District Manager confirmed the Assistant District Manager's
assertion that the function is a collateral duty and not a separate
full-time position. Upon review of the record, we find that complainant
has failed to demonstrate that the agency's reasons were pretext for
discrimination. Therefore, the agency's determination that complainant
failed to establish that she was discriminated against was correct.
CONCLUSION
After a careful review of the record, including complainant's arguments on
appeal, the agency's response, and arguments and evidence not specifically
discussed in this decision, the Commission AFFIRMS the agency's final
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 4, 2001
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination by
federal employees or applicants for employment. The ADA regulations
set out at 29 C.F.R. Part 1630 apply to complaints of disability
discrimination. These regulations can be found on EEOC's website:
www.eeoc.gov .
2The record indicates that the AFMSS system is to replace the AIRS system.
3We find that the agency erred to the extent that it found that
complainant had not established a prima facie case of sex or disability
discrimination because she was unable to demonstrate that she was treated
less favorably than any similarly situated employee. We note that to
establish a prima facie case, complainant must only present evidence
which, if unrebutted, would support an inference that the agency's
actions resulted from discrimination. Furnco, 438 U.S. at 576. It is not
necessary for the complainant to rely strictly on comparative evidence in
order to establish an inference of discriminatory motivation necessary to
support a prima facie case. O'Connor v. Consolidated Coin Caterers Corp.,
116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caterers Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).
4The Assistant District Manager averred that the Oil and Gas Program
also included leasing, applications to drill, the drilling of wells,
the production from wells, well abandonment, lease termination, sundry
notices, National Environment Policy Act reviews, and field inspections.