Petitioner, )

Equal Employment Opportunity CommissionDec 17, 1999
03990103 (E.E.O.C. Dec. 17, 1999)

03990103

12-17-1999

Petitioner, )


Mattie J. Tippitt v. Tennessee Valley Authority

03990103

December 17, 1999

Mattie J. Tippitt, )

Petitioner, )

) Appeal No. 03990103

v. ) MSPB No. AT0351981064I1

)

Craven H. Crowell, Jr., )

Chairman, )

Tennessee Valley Authority, )

Agency. )

)

DECISION

INTRODUCTION

On June 15, 1999, petitioner timely filed a petition with the Equal

Employment Opportunity Commission for review of the final decision

of the Merit Systems Protection Board (MSPB) dated May 14, 1999,

concerning an allegation of discrimination 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. The MSPB found that the Tennessee Valley Authority

(agency) had not engaged in discrimination as alleged by petitioner.

For the following reasons, the Commission concurs with the decision of

the MSPB.

ISSUE PRESENTED

The issue presented is whether the MSPB's determination that petitioner

failed to prove that the agency discriminated against her on the bases

of race (Afro-American), sex (female), age (56), and reprisal (prior EEO

activity) constitutes a correct interpretation of the applicable laws,

rules, regulations, and policy directives, and is supported by the record

as a whole.

BACKGROUND

A review of the record indicates that petitioner, employed by the agency

as an Engineering Associate - Welding, SE-5, was informed on June 23,

1995 that her job had been identified as at-risk and was targeted

for surplus due to budget reductions. She was also informed that,

as a result, she was being transferred to another part of the agency,

effective September 18, 1995, with her job title and pay grade intact.

Approximately one year later, on June 24, 1996, petitioner was informed

that, due to a shortage of funds, she was being terminated from her

position effective September 30, 1996.

Petitioner believes that race, sex, and age were factors in the

elimination of her job because she was replaced by White male contractors

who were younger than she. She also believes that reprisal was a

factor in the decision to eliminate her job. According to her, she

first contacted the EEO office in September 1990 because she was not

selected for a promotion. She stated that her previous participation

in the EEO process prevented her from getting trained or promoted, and

but for the fact that she was denied training and promotion, she would

have been more marketable in a reduction in forced (RIF) situation.

The agency denied that petitioner's termination was based on race, age,

sex, and/or reprisal. According to the agency, over 200 employees were

terminated from their positions as of September 30, 1996. The agency

pointed out that, as a result of the mass termination, both of the

persons employed as Engineering Associates - Welding, SE-5s, one of

which was petitioner, were let go.

ANALYSIS AND FINDINGS

The Commission must determine whether the MSPB's decision, regarding

the allegation of discrimination based on race, sex, age, and reprisal,

constitutes a corrective interpretation of any applicable law, rule,

regulation or policy directive and is supported by evidence in the record

as a whole. 29 C.F.R. �1614.305(c).

In the absence of direct evidence, a claim of discrimination is examined

under the three-part analysis originally enunciated in McDonnell

Douglas Corporation v. Green. 411 U.S. 792 (1973). See, Hochstadt

v. Worcester Found. for Experimental Biology, Inc., 425 F.Supp. 318

(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell

Douglas to retaliation cases); see also, Loeb v. Textron, 600 F.2d 1003

(1st Cir. 1979) (applying McDonnell Douglas to age cases). For petitioner

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. Id. 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

action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981). Once the agency has met its burden, the petitioner 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).

Reprisal

In order to establish a prima facie case of discrimination for an

allegation of reprisal, petitioner must show the existence of four

elements: (1) that she engaged in protected activity, e.g., participated

in a Title VII proceeding; (2) that the alleged discriminating official

was aware of the protected activity; (3) that she was disadvantaged

by an action of the agency contemporaneous with or subsequent to

such participation; and (4) that there is a causal connection between

the protected activity and the adverse employment action. Hochstadt

v. Worcester Found. for Experimental Biology, Inc., Id.; see also Mitchell

v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985); Burris v. United Telephone

Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 1982), cert. denied,

459 U.S. 1071 (1982).

Like the Board, we find that petitioner failed to establish a prima

facie case of reprisal. Specifically, we find that the petitioner did

not establish the existence of the fourth element. Because her prior

EEO activity occurred in 1990, and the discriminatory event, i.e.,

termination, in this case occurred six years later, we conclude that

there is no causal connection between the protected activity and the

adverse employment action. Consequently, because all four elements

must be proven in order to establish a prima facie case, we decline to

consider whether or not petitioner proved the existence of the first,

second, and third elements.

Race, Sex, and Age Discrimination

Although the initial inquiry in a discrimination case usually focuses

on whether the petitioner 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 petitioner has

established a prima facie case to whether she has demonstrated by

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).

In this case, the Commission finds that the agency has articulated a

legitimate, nondiscriminatory reason for its action. Specifically,

the agency contended that petitioner's job was terminated due to budget

concerns.

Because the agency has proffered legitimate, nondiscriminatory reasons

for the alleged discriminatory events, petitioner now bears the burden

of establishing that the agency's stated reason is merely a pretext for

discrimination. Shapiro v. Social Security Administration, EEOC Request

No. 05960403 (December 6, 1996). Petitioner 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)). We find that

petitioner has failed to meet that burden. The file contains evidence

which indicates that over 200 employees were terminated on the same day

as petitioner. The file also shows that the one other employee who held

the same position as petitioner was terminated as well. Consequently,

we find that petitioner failed to show that the reason articulated by

the agency was a pretext for discrimination.

CONCLUSION

Based upon a thorough review of the record and for the foregoing reasons,

it is the decision of the Commission to concur with the final decision

of the MSPB finding no discrimination. The Commission finds that the

Board's decision constitutes a correct interpretation of the laws, rules,

regulations, and policies governing this matter and is supported by the

evidence in the record as a whole.

STATEMENT OF RIGHTS - ON APPEAL

PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W1199)

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,

based on the decision of the Merit Systems Protection Board, WITHIN

THIRTY (30) CALENDAR DAYS of 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.

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:

Dec. 17, 1999

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 petitioner, petitioner's representative

(if applicable), and the agency on:

_____________________________

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