01972545
03-10-1999
Janice M. Scott, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Janice M. Scott v. Department of the Army
01972545
March 10, 1999
Janice M. Scott, )
Appellant, )
)
v. ) Appeal No. 01972545
) Agency No. 9407E0350
Louis Caldera, ) Hearing No. 100-95-8039X
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely appealed the final decision of the United States Postal
Service (agency), concerning her complaint alleging that the agency
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Section 2000e, et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
Appellant filed a formal complaint alleging that the agency discriminated
against her on the bases of race (African-American) when on February
25, 1994, she learned that she would not be taking a business trip to
Germany and Italy to conduct a review of the funding controls of the
agency's offices in those nations. Appellant further asserts that her
nonselection for the reviews adversely affected her reputation, her
rating during a midterm performance evaluation, and her opportunity for
promotion to the GS-12 level. Following the agency's investigation of
her complaint, appellant requested a hearing with an EEOC administrative
judge (AJ). Thereafter, the AJ followed appropriate procedure for
issuing a recommended decision without a hearing. Pursuant to 29
C.F.R. �1614.109(e)(3), the AJ provided notice to the parties. Appellant
submitted a response. Subsequently, on December 20, 1996, the AJ issued
a recommended decision without a hearing finding no discrimination.
Thereafter the agency adopted the AJ's recommended decision in a final
agency decision dated December 30, 1996.
In his recommended decision, the AJ found that appellant failed to
establish a prima facie case of disparate treatment discrimination.
Specifically, the AJ found that appellant failed to show that the
agency permitted a similarly situated employee outside appellant's
protected racial group to perform budget reviews on the trip to Germany
and Italy, or any other trip. Management sent a GS-12 Senior Budget
Analyst on the trip who was acting in a supervisory capacity at the
time she was selected. During the time in question appellant was a
GS-11 Budget Analyst. Therefore, the AJ concluded that appellant was
not similarly situated.
Assuming, arguendo, if appellant had established a prima facie case
of disparate treatment discrimination, the AJ found that the agency
articulated a legitimate, nondiscriminatory explanation. Appellant's
third-level supervisor (Responsible Official, RO) explained that she
believed that the Senior Budget Analyst was the best qualified management
level employee able to make the trip. According to the record, the
Acting Branch Chief at that time was not available due to her workload.
The AJ further noted that the RO did not make the decision based on
appellant's performance or abilities, but only on her decision to select
a management level employee after higher level supervising officials
expressed concerns about the need for, and execution of the trip.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); see also Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253-56 (1981). The Commission concludes that,
in all material respects, the AJ accurately set forth the facts giving
rise to the complaint and the law applicable to the case. We find that
the AJ properly decided this case without a hearing. Furthermore, we
agree that the agency rebutted any inference of discrimination appellant
may have established by articulating a legitimate, nondiscriminatory
explanation for not selecting appellant for the trip in question.
We further find appellant's contentions are without merit stating that
the RO's decision not to select her for the trip adversely affected her
reputation and promotion opportunities. Appellant presented no persuasive
evidence or arguments on appeal. Therefore, we discern no legal basis
to reverse the AJ's finding of no discrimination. Accordingly, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM
the final agency decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction in
which your action would be filed. 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 (Z1092)
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:
March 10, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations