01986527
05-31-2000
Mona Dogans, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Mona Dogans v. Department of Housing and Urban Development
01986527
May 31, 2000
Mona Dogans, )
Complainant, )
) Appeal No. 01986527
v. ) Agency No. FW 91-29A
)
Andrew M. Cuomo, )
Secretary, )
Department of Housing and Urban )
Development, )
Agency. )
)
DECISION
INTRODUCTION
Mona Dogans (complainant) timely filed an appeal on August 26, 1998,
with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD), dated July 28, 1998, concerning
a claim of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> The Commission hereby accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
Whether the agency correctly determined that complainant was not
discriminated against on the bases of race (Black), sex (female), and
retaliation (prior EEO activity) when management denied her request for
forty hours of administrative leave to prepare for an Equal Employment
Opportunity Commission (EEOC) hearing.
BACKGROUND
Complainant was employed by the agency as a Loan Assistant, GS-1165-9.
She filed a formal complaint with the agency alleging discrimination
on the above mentioned bases when she was denied forty hours of
administrative leave. In its FAD, the agency found no discrimination.
This appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973).<2> For complainant 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). 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). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
A prima facie case of reprisal is established by showing that: (1) the
complainant engaged in protected activity; (2) the employer was aware of
the protected activity; (3) the complainant was subsequently subjected
to adverse treatment; and (4) the adverse action followed the protected
activity within such a period of time that a retaliatory motivation may
be inferred. See Manoharan v. Columbia University College of Physicians
and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould, 808
F. 2d 493, 500 (6th Cir. 1987); McKenna v. Weinberger, 729 F.2d 783,
790 (D.C. Cir. 1984).
This established order of analysis in discrimination cases, in which
the first step normally consists of determining the existence of
a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the
personnel action at issue, the factual inquiry can proceed directly to
the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In response to complainant's claim that she was denied forty hours of
administrative leave to prepare for her EEOC hearing, we find that the
agency has articulated a legitimate, nondiscriminatory reason for its
action. The agency explained that complainant asked to be given forty
hours of administrative leave, in advance, to prepare for the hearing.
The agency said that it authorized only four hours of administrative
leave for complainant because that was as much official time as they
usually authorized at one time. Since the agency articulated such
a reason, the burden returns to the complainant to demonstrate that
the agency's articulated reason was a pretext for discrimination.
We find that the complainant has failed to do so. In her appeal to the
Commission, complainant argued that not only was she denied forty hours of
administrative leave, she never even received four hours of administrative
leave and was told to use her annual leave instead. She also asserted
that she had received forty hours of administrative leave, in the
past, for prior EEO activity. Finally, she asserted that two other
coworkers had also been granted forty or more hours of administrative
leave under similar circumstances. The record shows, however, that
complainant was granted four hours of administrative leave. It shows,
further, that complainant had in the past been granted forty hours,
but in increments rather than as a block of time granted in advance.
Other employees who complainant asserts were treated more favorably
had also been granted forty or more hours of leave in increments, on
an as-needed basis, rather than as a block of time granted in advance.
Further, these co-workers were, like complainant, Black females, who had
filed prior EEO complaints. In addition, complainant has not provided,
nor does the record contain, any other evidence of pretext. Therefore,
the agency's determination that complainant failed to establish that
she was discriminated against is supported by the record.
CONCLUSION
The decision of the agency is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
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:
05-31-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The Commission typically treats a claim, such as the one in the instant
case, as a question of the reasonableness of complainant's request for
official time, and not as an issue of discrimination. See Management
Directive (MD) 110, at 6-15 to 6-17 (November 9, 1999). But since the
agency has ruled on this case as if it were a discrimination claim, we
will not disturb their method of analysis, and will rule on this case
in the same manner.