01A41110_r
03-31-2004
Tammie Mask, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Tammie Mask v. Department of Agriculture
01A41110
March 31, 2004
.
Tammie Mask,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A41110
Agency No. 990118
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was
employed as an Accounting Technician, GS-515-6, at the agency's Forest
Service (FS), Supervisor's Office, National Forests and Grasslands (NFG)
in Lufkin, Texas. Complainant sought EEO counseling and subsequently
filed a formal complaint on November 12, 1998, alleging that she was
discriminated against on the basis of race (African-American) when:
(1) she was denied a temporary promotion to an Accounting Technician
position GS-525-7, beginning in May 1998; and
(2) she was not selected for the Resource Assistant position, GS-1101-6/7,
advertised under Vacancy Announcement No. R813-003-98, in August 1998.
In its May 19, 2000 final decision, the agency dismissed complainant's
complaint for raising the same matter as that raised in a negotiated
grievance procedure that permits allegations of discrimination, pursuant
to 29 C.F.R. � 1614.107(a)(4). On appeal, the Commission reversed
the agency's dismissal and remanded the complaint to the agency for
further processing. Mask v. United States Department of Agriculture,
EEOC Appeal No. 01A04832 (September 19, 2001).
Following the Commission's September 19, 2001 decision, the agency
accepted complainant's complaint for further processing. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. Complainant requested that
the agency issue a final decision.
The agency issued a new final decision on October 29, 2003, that is the
subject of the present appeal, finding no discrimination. Regarding claim
(2), the agency determined that complainant failed to establish a prima
facie case of race discrimination concerning her non-selection for the
position of Resource Assistant, GS-1101-6/7, advertised under Vacancy
Announcement No. R813-003-98. The agency further concluded that it
articulated a legitimate, non-discriminatory reason for its actions,
as complainant failed to demonstrate in her application for the subject
position that she satisfied the requisite one-year of specialized
experience.
Regarding claim (1), the agency determined that complainant did establish
a prima facie case of race discrimination in regard to being denied a
temporary promotion. However, the agency determined that it articulated
a legitimate reason for its actions and complainant failed to show that
these reasons were a pretext for discrimination.
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, 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. See 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. See 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. See 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. See 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).
Claim (2)
The Commission finds that the agency articulated a legitimate,
non-discriminatory reason for its non-selection of complainant.
The record contains evidence supporting a determination that complainant
was not qualified for the subject position because she lacked the required
one year of specialized experience and was therefore not placed on the
certificate of eligibles referred for selection for the subject position.
The record contains a copy of a Team Leader's letter to complainant dated
August 17, 1998. Therein, the Team Leader stated that the Office of
Personnel Management's Qualification Standards Operating Manual shows
that one year of specialized experience at the next lower grade level
is required to qualify for positions in the GS-1101 series. The Team
Leader further stated that in her application, complainant showed that
she was working at the next lower grade level, in a different series and
that she was performing a variety of duties. The Team Leader stated
that complainant's application "did not show the percentage of time
you performed the duties which would qualify as specialized experience,
nor the extent to which you performed those duties.� According to the
Team Leader, complainant was not credited with the required one year of
specialized experience.
Complainant has not demonstrated that the agency's articulated reasons
for the non-selection were a pretext for discrimination.
Claim (1)
The Commission finds that the agency articulated a legitimate,
non-discriminatory reason for its employment action, which we determine
was not persuasively rebutted by complainant. The record in this case
contains a copy of an affidavit from the Forest Supervisor. Therein, the
Forest Supervisor stated that he became aware that complainant's interest
in a temporary promotion was due to an employee in a similar position
receiving a temporary promotion; and that thereafter, he spoke with
complainant's Supervisor regarding complainant's request. The Forest
Supervisor stated that during this conversation, complainant's
Supervisor informed him that she did not believe complainant's work
was identical to the work for which another employee had been granted a
temporary promotion, but also felt that the position description for the
work complainant was performing was not accurate. The Forest Supervisor
stated that based on this conversation, he did not have the justification
for approving complainant a temporary promotion. The Forest Supervisor
indicated, however, that he instructed complainant's supervisor to work
with the Personnel Management specialist to develop an accurate position
description and have it properly classified. The Forest Supervisor stated
that he never denied or approved her temporary promotion based on race.
The Forest Supervisor stated that complainant received a temporary
promotion then based on the development of a position description that
accurately reflected changes in her duties, complainant was permanently
promoted to the GS-7 level. Furthermore, the Forest Supervisor stated
that in less than three years, complainant has been permanently promoted
to the GS-9 level, based on increased complexities of the job created
by a new accounting system. With respect to complainant's claim that
he labeled her a "troublemaker," the Forest Supervisor denied making
these statements to complainant or to other employees.
Complainant has not demonstrated that the agency's articulated reasons
for its actions were a pretext for discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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
March 31, 2004
__________________
Date