01986167
06-30-2000
Terry Seabrook. Complainant, Louis Caldera, Secretary, Department of the Army. Agency.
Terry Seabrook v. Department of the Army
01986167
June 30, 2000
Terry Seabrook. )
Complainant, )
)
) Appeal No. 01986167
) Agency No. 09608G0160
Louis Caldera, )
Secretary, )
Department of the Army. )
Agency. )
______________________________)
DECISION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (EEOC) from the final decision of the agency
concerning complainant's claims that the agency violated Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.. The
appeal is accepted in accordance with 64 Fed.Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).<1>
During the relevant time period, complainant worked as a Mechanical
Engineer, GS-0830-11 in the agency's Department of Public Works (DPW) in
Fort McPherson, Georgia. Complainant filed a formal EEO complaint raising
the issues of whether she was discriminated against on the bases of sex
(female) and race (African-American) when:
(1) in May 1994, she was denied an opportunity to represent the Garrison
Command as the Program Manager for Blacks in Government (BIG) while a
Black, male employee was allowed to fill that position;
(2) she was continually discriminated against and harassed by individuals
in the DPW after being accepted for a long-term management training
assignment to Washington, DC when: (a) management selected her position
for abolishment, and in December 1994, she was issued a reduction-in-force
(RIF) letter and part of her duties were assigned to a White, male
employee; and (b) in December 1995, she was denied the opportunity to
be considered for an Environmental Engineer Position at the same grade;
(3) in March, August and December 1995, she was denied requested
information and benefits regarding her employment status after being
notified of her impending RIF; and
(4) on January 2, 1997, she was subjected to a RIF action and was
transferred to the position of Production Comptroller (Office Automation),
GS-1152-06.
During the relevant time period, complainant worked as a Mechanical
Engineer, GS-0830-11 in the agency's DPW in Fort McPherson,
Georgia. Complainant filed a formal EEO complaint raising the issues
stated above. The complaint was investigated. Regarding Issues 2, 3 and
4, the agency found that these were claims appealable to the Merit Systems
Protection Board (MSPB) and that, therefore, complainant was not entitled
to an EEOC hearing. The agency concluded that Issue 1 was appealable
to the EEOC and that complainant was entitled to an EEOC hearing. When
complainant did not request an EEOC hearing the agency issued a final
agency decision (FAD) which found no discrimination and which included
appropriate appeal rights to the EEOC and the MSPB. Complainant now
appeals the FAD's decision regarding Issue 1. Complainant makes no
specific contentions on appeal regarding the merits of Issue 1 or
regarding the agency's handling of the complaint as a whole.
Regarding Issue 1, the agency found that complainant failed to establish
a prima facie case of race or sex discrimination because: (1) the denial
of her request to serve as the BIG representative did not constitute
an adverse personnel decision as it was not an entitlement which would
affect complainant's employment; and (2) she did not show that she was
treated less favorably than similarly situated individuals outside of her
protected groups. In this regard, the agency concluded that the male
employee chosen for the BIG appointment was given the position months
apart from the time complainant was denied the position. The agency also
noted that the male appointee was an Administrative Assistant whereas
complainant was a Mechanical Engineer.
However, the agency also concluded that it articulated a legitimate,
nondiscriminatory reason for its action which complainant did not prove
was pretextual. According to the agency, complainant requested, in May
1994, that she be appointed as the BIG representative. The agency stated
that while the agency official who was Chief of Staff (the Chief, White,
male) did not recall all of the details of complainant's request, as
best he could remember the request was denied because the agency needed
complainant to spend the majority of her time on assigned projects
involving installation activities. The Chief stated that projects
complainant was working on at the time were crucial to the operations
of installations.
Complainant's complaint constitutes a claim of disparate treatment
and the agency properly analyzed it under the three-tiered analytical
framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
Texas Dept. of Community Affairs v. Burdine, 450 U.S.248, 253-256 (1981).
Applying these legal standards, the Commission finds that the agency
properly found that complainant was not discriminated against on the bases
of race and sex. We find that complainant did not submit evidence which
proved, by a preponderance of the evidence, that the articulated reasons
of the agency were a pretext to mask race and sex discrimination. More
specifically, complainant did not submit evidence which shows that the
work of the BIG assignment would not have interfered with her assigned
duties as the agency stated. Complainant also presented no other evidence
which points to an illegal bias on the part of the Chief with regard
to Black, female employees. Accordingly, we find that complainant did
not meet her burden of proving, by a preponderance of the evidence,
that she was discriminated against as alleged.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
06-30-00
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:
_______________________ ___________________________
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.