01974281
09-03-1999
Mary Overman, Appellant, v. Lt. Gen. Kenneth A. Minihan Director, National Security Agency Agency.
Mary Overman, )
Appellant, )
) Appeal No. 01974281
v. ) Agency No. 96-029
)
Lt. Gen. Kenneth A. Minihan )
Director, )
National Security Agency )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on
the bases of religion (Christian ), sex (female ), and age (over 40),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq.; and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. Appellant alleges
she was discriminated against when, on February 22, 1997, she was removed
from her position as Division Chief. The appeal is accepted in accordance
with EEOC Order No. 960.001.
BACKGROUND
The record reveals that appellant filed a formal EEO complaint on May 15,
1996 alleging discrimination as referenced above. The agency accepted
the complaint for processing and, at the conclusion of the investigation,
issued a final decision finding no discrimination. The central event
in this case occurred when the agency notified, via electronic mail, the
division workforce that appellant would no longer serve as Division Chief.
Appellant then filed the instant complaint.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973), Loeb v. Textron, Inc., 600 F.2d 1003
(1st Cir. 1979). Appellant has the initial burden of establishing a
prima facie case of discrimination. Id. at 802. If appellant meets
this burden, then the burden shifts to the agency to articulate some
legitimate, nondiscriminatory reason for its challenged action. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If this is done, then the appellant must prove, by a preponderance of
the evidence, that the legitimate reason articulated by the agency was
not its true reason, but rather a pretext for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the appellant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the appellant has
established a prima facie case to whether s/he 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).
The Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency
contends that appellant was removed from her division as Deputy
Chief because: (1) she had minimal contact with and failed to provide
essential guidance to her workforce; (2) her workforce did not believe
that she knew what was happening in her division; (3) she suffered
from poor prioritization and delegation skills; failing to properly
utilize resources including her deputy and branch chiefs for mission
accomplishments; (4) she spent an inordinate amount of time focused on
projects outside her division; and (5) she failed to deliver her expected
contributions to the organization's strategic plan.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, appellant 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). Appellant 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)).
In this case, appellant has failed to meet that burden. Based upon
affidavits from several agency employees, including some of appellant's
subordinates, appellant was an ineffective manager. To refute this
contention, appellant asserts that she was well qualified for the
position. However, according to materials submitted by the agency,
the agency was concerned about her performance in the job, not her
qualifications for it. Because appellant presents no evidence that her
performance as Division Chief was not substandard, we find that the she
failed to prove, by a preponderance of the evidence, that the agency's
articulated reasons for its actions were a pretext for discrimination.
CONCLUSION
Accordingly, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we hereby AFFIRM the final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. �1614.604(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 the 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 the 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 the 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:
September 3, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations