0120101812
08-05-2010
Linda Crumpton, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Linda Crumpton,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120101812
Hearing No. 410-2009-00203X
Agency No. IRS080335F
DECISION
On March 25, 2010, Complainant filed an appeal from the Agency's February 22, 2010, final decision concerning her equal employment opportunity (EEO) complaint alleging 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the final Agency decision (FAD).
ISSUE PRESENTED
Whether the FAD was correct that Complainant was not subjected to unlawful discrimination as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant applied for the position of Tax Examiner, GS-7.1 On October 29, 2007, Complainant was found eligible for the position. All eligible candidates were required to have their fingerprints taken. On October 31, 2007, Complainant was scheduled for a fingerprint session on November 7, 2007. Complainant failed to attend that session and was re-scheduled for a subsequent session on November 29, 2007, which she did attend. Complainant was later advised on or about November 29, 2007, that she was not eligible for selection for the position because she failed to attend the initial fingerprinting session. The Agency had prepared its certificate of eligibles for the Tax Examiner positions one day earlier, November 28, 2007, using the names of the applicants who had been fingerprinted before this date. No applicant who was fingerprinted on November 29, 2007, or after, was placed on the certificate of eligibles to be interviewed.
On April 16, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (Black) when she was not selected for position of Tax Examiner, GS-7, under Vacancy Announcement No. 07AT3-WIE0083-592-5T7R-HM.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing which the AJ ultimately cancelled after Complainant allegedly failed to appear at the hearing, and did not subsequently show cause for her failure to appear. The AJ remanded the complaint to the Agency, and the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination.
In its FAD, the Agency determined that assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, it established legitimate nondiscriminatory reasons for its actions. Specifically, Complainant did not attend her initial fingerprint session that was scheduled for November 7, 2007. The FAD further found that although Complainant was subsequently fingerprinted on November 29, 2007, the Agency prepared its certificate of eligibles for the Tax Examiner positions one day earlier, November 28. 2007, and used the names of the applicants who had been fingerprinted before this date. The Agency indicated that no applicants who were fingerprinted after November 28, 2007, were considered for the positions at issue. The FAD also found that Complainant did not demonstrate that the Agency reasons were a pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant has not submitted a brief on appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant now bears the burden of proving by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this directly by showing that the Agency's preferred explanation is unworthy of credence. Burdine, 450 U.S. at 256. Upon review, we find that Complainant failed to provide any evidence of pretext in the record. Furthermore, we find that the record is devoid of any evidence that the Agency's actions were motivated by discriminatory animus towards Complainant's race.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
______8/5/10____________
Date
1 Complainant was not employed by the Agency at this time.
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0120101812
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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