Barbara Richardson, Petitioner,v.Ann M. Veneman, Secretary, Department of Agriculture, (Agricultural Research Service), Agency.

Equal Employment Opportunity CommissionDec 11, 2003
03a40016 (E.E.O.C. Dec. 11, 2003)

03a40016

12-11-2003

Barbara Richardson, Petitioner, v. Ann M. Veneman, Secretary, Department of Agriculture, (Agricultural Research Service), Agency.


Barbara Richardson v. Department of Agriculture

03A40016

December 11, 2003

.

Barbara Richardson,

Petitioner,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

(Agricultural Research Service),

Agency.

Petition No. 03A40016

MSPB No. DC-0752-03-0473-I-1

DECISION

On October 18, 2003, petitioner filed a timely petition with the

Equal Employment Opportunity Commission asking for review of a final

order issued by the Merit Systems Protection Board (MSPB) concerning

her claim of discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

Petitioner, a Secretary (Office Automation), GS-0318-05, alleged that

she was discriminated against on the basis of reprisal when she was

removed from the agency, effective December 30, 2002.

On January 27, 2003, petitioner filed a mixed case appeal with the MSPB.

After a hearing, the Administrative Judge (AJ) found that petitioner was

not discriminated against as alleged. Specifically, the AJ found that

four of the five reasons given by the agency for petitioner's removal

were sufficient to support the agency's action. Petitioner did not seek

a review of the AJ's decision from the Board.

EEOC Regulations provide that the Commission has jurisdiction over

mixed case appeals on which the MSPB has issued a decision that makes

determinations on allegations of discrimination. 29 C.F.R. � 1614.303

et seq. The Commission must determine whether the decision of the

MSPB with respect to the allegation of discrimination constitutes a

correct interpretation of any applicable law, rule, regulation or policy

directive, and is supported by the evidence in the record as a whole.

29 C.F.R. � 1614.305(c).

In the absence of direct evidence, a claim of discrimination is examined

under the three-part analysis originally enunciated in McDonnell Douglas

Corporation v. Green. 411 U.S. 792 (1973). For petitioner 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. Id. 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

action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981). Once the agency has met its burden, the petitioner 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).

Although the initial inquiry in a discrimination case usually focuses

on whether the petitioner has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated

legitimate, nondiscriminatory reasons for its action. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the petitioner has

established a prima facie case to whether she has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717

(1983). Here, the Commission finds that the agency has articulated

legitimate, nondiscriminatory reasons for its action. Specifically,

the agency stated that petitioner was removed from the agency for

exhibiting disrespect toward her supervisor, failing to follow the

proper procedures for requesting leave, failing to follow supervisory

instructions, uncooperative behavior, and being absent without leave.

Because the agency has proffered a legitimate, nondiscriminatory reason

for the alleged discriminatory event, petitioner now bears the burden of

establishing that the agency's stated reasons are merely a pretext for

discrimination. Shapiro v. Social Security Administration, EEOC Request

No. 05960403 (December 6, 1996). Petitioner can do this by showing

that the agency was motivated by a discriminatory reason. Id. (citing

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). We find that

petitioner has failed to meet this burden. The only evidence, other than

her own testimony, offered by petitioner to prove pretext is testimony

from her former EEO representative who stated that in his opinion, the

removal action might have been in retaliation for petitioner's prior

EEO activity. But the representative's mere assertions, without more,

is not sufficient to prove pretext. We note that the MSPB AJ did not

sustain the charge of being absent without leave, but then went on to

find that the other reasons given by the agency were sufficient to support

the removal, and not evidence of discrimination. This Commission agrees.

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

MSPB'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.

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

December 11, 2003

__________________

Date