05971093
03-05-1999
Johnie B. Hammons, Appellant, v. Andrew Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Johnie B. Hammons v. Department of Housing and Urban Development
05971093
Mar 5, 1999
Johnie B. Hammons, )
Appellant, )
) Request No. 05971093
v. ) Appeal No. 01955704
) Agency No. KC 93 01A
Andrew Cuomo, )
Secretary, )
Department of Housing )
and Urban Development, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On September 22, 1997, Johnie B. Hammons (hereinafter referred to
as appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision in
Johnie B. Hammons v. Andrew Cuomo, Secretary, Department of Housing
and Urban Development, EEOC Appeal No. 01955704 (August 20, 1997).
Appellant received the decision on August 25, 1997. EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation or material fact,
or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, the appellant's request is denied. On our own motion,
the Commission reconsiders the previous decision.
ISSUE PRESENTED
The issue presented is whether the previous decision properly determined
that the agency did not discriminate against appellant on the basis of
race (black) with regard to certain events in September 1992.
BACKGROUND
Appellant filed her formal complaint on October 26, 1992. Following an
investigation, appellant was notified of her right to request a hearing
before an EEOC Administrative Judge but did not do so. On June 16,
1995, the agency issued a final agency decision (FAD), finding no
discrimination.
At the time of the events herein, appellant worked as an Equal Opportunity
Specialist, GS-11, in Kansas City. In her complaint, appellant alleged
that her supervisor (a) gave her work assignments with conflicting due
dates; (b) verbally abused her during a telephone conversation; and
(c) placed her on AWOL (absent without leave) status.<1> Appellant
claimed that her supervisor (black) (S1) treated her differently than a
Hispanic female co-worker (E1). In remedy, with regard to these issues,
appellant sought transfer to another division and compensation for the
charge of AWOL.
(a) Work Assignments
Appellant contended that, on August 17, she was given two assignments,
both with due dates of September 3: (a) to visit and assess a project
in Brunswick, Missouri, on September 1-2; and (b) to complete certain
case closures. Appellant did not request an extension for the latter
assignment until the due date. The agency indicated that such assignments
were not uncommon, and other staff were able to timely complete seemingly
conflicting assignments.
(b) Verbal Abuse
For September 10, appellant had been granted two and one-half hours of
unscheduled annual leave to take a friend to the airport. Later in the
day on September 10, she called S1 to request additional leave, but S1
denied her request. Appellant claimed that S1 was verbally abusive to
her during the telephone conversation. S1 denied she was abusive and
stated that appellant became argumentative. Witnesses testified that
S1 and appellant often engaged in loud verbal exchanges.
(c) AWOL
Having denied appellant's request for additional leave on September 10,
S1 placed her on AWOL status for the remainder of the day.<2> S1 stated
that appellant had not followed proper procedures in requesting leave
and was needed in the office to perform her work duties. S1 denied that
she treated E1 or other employees more favorably with regard to leave
and asserted that she granted all employees leave in the same manner.
She noted that appellant had a history of performance and conduct problems
as well as leave abuse. The secretary stated that all employees are
charged leave when absent, although on occasion leave slips may be
completed after the leave is taken. Other employees stated that they
had never been denied annual leave when it had been requested in advance.
The previous decision found that, in response to appellant's prima facie
case, the agency failed to articulate a legitimate, nondiscriminatory
reason for its action, in that, S1's testimony was not credible.
Specifically, the decision found that, although S1 claimed that she did
not give conflicting assignments, two other staff members (black) stated
that this was common. Also, S1 denied her close friendship with E1, but
E1 and other staff members indicated that they were personal friends.
Finally, the AJ concluded that the evidence showed that S1 treated E1
more favorably than appellant. Next, the decision turned to the ultimate
question of whether appellant showed that the agency discriminated against
her and found that she failed to demonstrate that S1's actions toward
E1 were based on prohibited discrimination rather than her friendship
with E1.
In her request for reconsideration, appellant asserts that her supervisor
discriminated against her based on race. Also, she repeats some of
her claims. The agency did not file comments in response to the request.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument
or evidence that tends to establish at least one of the criteria
of 29 C.F.R. �1614.407(c). Having reviewed the record, we find that
appellant's request fails to meet the criteria of 29 C.F.R. �1614.407(c).
Nevertheless, on its own motion, the Commission reconsiders the previous
decision to correct the legal analysis of the previous decision.
In general, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). For appellant to prevail, she 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. McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). We agree with
the previous decision that appellant established a prima facie case of
discrimination based on race.
Once an appellant has set forth a prima facie case, the burden
of production shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. McDonnell Douglas, 411
U.S. at 802-04. The agency may rebut the presumption of discrimination by
clearly setting forth, through the introduction of admissible evidence,
its for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 254-255 (1981). If the agency is successful, the burden
reverts back to the appellant to demonstrate by a preponderance of the
evidence that the agency's reasons were a pretext for discrimination.
At all times, appellant retains the burden to show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716
(1983)
The previous decision determined that the agency failed to articulate
a legitimate, nondiscriminatory reason for its action. In so doing,
the decision improperly considered S1's credibility. The question of
S1's credibility is more properly examined in the third stage of the
McDonnell Douglas analysis, since it is one factor in the analysis of
whether the agency's reason was pretextual. Where a decision-maker
finds that the agency's representatives lack credibility, the degree
and substance of such incredulity contributes to an analysis of the
validity of the agency's reason. The appellant still retains her ultimate
burden of proving by a preponderance of the evidence that the agency's
articulated reasons for the action was a pretext for discrimination.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).<3>
The agency's burden to articulate a legitimate, nondiscriminatory reason
for its action need only be sufficiently clear to raise a "genuine issue
of fact" as to whether discrimination occurred. Burdine, 450 U.S. at 254.
It merely "frame[s] the factual issue with sufficient clarity so that
[appellant] will have a full and fair opportunity to demonstrate pretext."
450 U.S. at 255-256; Parker v. United States Postal Service, EEOC Request
No. 05900110 (April 30, 1990) (citing Burdine, 450 U.S. at 256); see also
St. Mary's Honor Center v. Hicks, supra, citing U.S. Postal Service Board
of Governors v. Aikens, 460 U.S. at 716 and Burdine, 450 U.S. at 256.
As more fully set forth below, we find that the agency articulated a
legitimate, nondiscriminatory reason with sufficient clarity to provide
appellant a full and fair opportunity to demonstrate that the agency's
reason was pretext for discrimination.
The previous decision properly found that appellant established a
prima facie case. In response to each of appellant's claims, the
agency, through S1, stated that seemingly duplicate assignments were
not uncommon, and other staff were able to complete them; that appellant
was argumentative and S1 was not abusive to appellant on the telephone;
and that appellant was placed on AWOL status because she had failed to
properly request leave. We find that the agency has met its burden
to provide a specific, clear, and individualized explanation for the
treatment accorded the appellant. The agency's explanation provides
appellant the opportunity to attempt to satisfy her ultimate burden of
demonstrating by preponderant evidence that the agency's explanation
was a pretext for discrimination.
Since the agency articulated a legitimate, nondiscriminatory reason for
its actions, the burden returns to appellant to demonstrate that the
agency's articulated reason was merely a pretext for discrimination.
Appellant must show that the agency's articulated reason is more likely
than not motivated by discrimination, that is, that the action was
influenced by discriminatory bias. Absent a showing that the agency's
articulated reason was used as a tool to discriminate against her,
appellant cannot prevail.
With regard to appellant's claim concerning work assignments, we find that
the record does not indicate that the due dates for the two assignments
herein were made based on discriminatory factors. S1 acknowledged,
and other employees confirmed, that projects often had the same due
dates and were apparently made with sufficient advance notice that
proper time utilization would assure compliance. It appears, however,
that S1 criticized appellant because she did not request an extension
for one assignment until its due date.
As to appellant's claim of verbal abuse, S1 denied she was abusive to
appellant on the telephone and stated that appellant was argumentative.
While other employees stated that S1 and appellant often engaged in loud
verbal exchanges, there is nothing in the record to support appellant's
claim that S1 was abusive at that time. Further, to the extent that
appellant may be alleging harassment, appellant failed to allege, and the
record does not show, sufficient facts to tie S1's behavior to her race.
Finally, appellant complained about the AWOL charge on September 10.
S1 stated that appellant was placed on AWOL status because she had failed
to properly request leave and that she was needed in the office to perform
her work duties. S1 denied that she treated E1 or other employees more
favorably with regard to leave and asserted that she granted all employees
leave in the same manner. She noted that appellant had a history of
performance and conduct problems as well as leave abuse. The statements
of the secretary and other employees support S1's assertion that she
treated all employees in the same manner with regard to leave requests.
In general, appellant asserts that S1 discriminated against her, in
that, S1 granted E1 special favors and considerations with regard to
assignments and leave usage. Although appellant alleged generally
that E1 abused leave, she did not show that E1 or any other employee
took leave and was not charged for it, nor did she show that S1 had
denied her leave when it had been requested through proper procedures.
We find that appellant's claims are very general and unspecific and are
not supported by evidence. Also, she has not shown that she was singled
out for discrimination by S1. We find therefore that appellant has not
demonstrated that the agency's reason was pretext for discrimination.
We find that the agency did not discriminate against her.
CONCLUSION
After a review of the appellant's request for reconsideration,
the previous decision, and the entire record, the Commission finds
that the appellant's request fails to meet any of the criteria of 29
C.F.R. �1614.407(c). The Commission has reconsidered the previous
decision on its own motion. The decision in EEOC Appeal No. 01955704
(August 20, 1997) is AFFIRMED, as MODIFIED, and the agency's final
decision is AFFIRMED. There is no further right of administrative appeal
on a decision of the Commission on a Request for Reconsideration.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
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.
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:
Mar 5, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 All events, unless otherwise stated, occurred in 1992. Other issues
raised by appellant, including overtime compensation, placement on a
Performance Improvement Plan, delayed promotion, and acceptance of a
medical certification, have been addressed in an earlier FAD or by the
MSPB.
2 Thereafter, appellant did not return to work. The agency has indicated
that appellant is no longer employed with the agency.
3 Disbelief of the agency's articulated reasons does not compel a
finding of discrimination as a matter of law; however, disbelief of
the reasons put forward by the agency, together with the elements of
the prima facie case, may suffice to show intentional discrimination.
Jones v. Department of Veterans Affairs, EEOC Request No. 05940013
(November 2, 1995), citing to Hicks, supra; see also EEOC Enforcement
Guidance on St. Mary's Honor Center v. Hicks (April 12, 1994).