01970331
06-29-1999
Lolitah Stephens, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Lolitah Stephens v. Department of the Air Force
01970331
June 29, 1999
Lolitah Stephens, )
Appellant, )
)
v. ) Appeal No. 01970331
) Agency No. ATL96AF207E
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning her equal
employment opportunity (EEO) complaint, which alleged discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal is accepted by the Commission in
accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether appellant has established by a
preponderance of the evidence that the agency discriminated against her
on the bases of race (Black), color (black), sex (female), and reprisal
(prior EEO activity) when the Lodging Manager asked her to be quiet
during an employees' meeting at which about 75 people were present.
BACKGROUND
In a complaint dated January 11, 1996, appellant, then a Custodial Worker,
NA-1, at the agency's Tyndall Air Force Base, alleged that the agency
discriminated against her as delineated in the above-entitled statement
"Issue Presented." The agency conducted an investigation, provided
appellant with a copy of the investigative report, and advised appellant
of her right to request either a hearing before an EEOC administrative
judge (AJ) or an immediate final agency decision (FAD). Appellant did
not respond. Following the expiration of appellant's time to respond,
the agency issued a FAD finding no discrimination. It is from this
decision that appellant now appeals.
ANALYSIS AND FINDINGS
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant,
appellant herein, to initially establish that there is some substance
to his or her allegation. In order to accomplish this burden the
complainant must establish a prima facie case of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). This
means that the complainant must present a body of evidence such that,
were it not rebutted, the trier of fact could conclude that unlawful
discrimination did occur.
Appellant has established a prima facie case of race, color, sex, and
reprisal discrimination. She was the only employee, out of a large group
including persons not of her protected groups, who was singled out by name
when the Lodging Supervisor was attempting to quiet a group of employees
for a meeting. See Potter v. Goodwill Industries of Cleveland, Inc.,
518 F.2d 864, 865 (6th Cir. 1975); Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F.2d 222 (1st Cir. 1976).
The burden now shifts to the agency to articulate a legitimate,
non-discriminatory explanation for its action. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard, the
agency need only produce evidence sufficient "to allow the trier of
fact rationally to conclude" that the agency's action was not based on
unlawful discrimination. Id. at 257. The agency has met its burden
through the testimony of the Lodging Manager, who stated that he called
appellant by name when asking the employees to be quiet because she had
a loud voice which he heard above the others.
Once the agency has articulated such a reason, the question becomes
whether the proffered explanation was the true reason for the agency's
action, or merely a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of production,
in other words, "going forward," may shift, the burden of persuasion, by
a preponderance of the evidence, remains at all times on the complainant.
Burdine, 450 U.S. at 256. Appellant argued that she was only responding
to the questions of another employee, rather than initiating conversation,
but she does not deny that was speaking. Further, she has produced
no evidence to show that the Lodging Manager more likely than not was
motivated by a discriminatory motive rather than his stated explanation.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if 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. 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:
June 29, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations