03a10041
03-28-2001
Vonzell Harris, Petitioner, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Vonzell Harris v. Department of Treasury
03A10041
March 28, 2001
.
Vonzell Harris,
Petitioner,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Petition No. 03A10041
MSPB No. SF-0752-00-0266-I-1
DECISION
On December 11, 2000, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of an Initial Decision
issued by a Merit Systems Protection Board (MSPB) Administrative Judge
(AJ) concerning her claim of discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq.
Petitioner, a Customs Patrol Officer, alleged that she was discriminated
against on the bases of sex (female), race (African-American), and
reprisal (prior EEO activity) when she was issued a fifteen (15) day
suspension effective January 10, 2000. The record indicates that
petitioner was suspended for disrespectful conduct based on three
specific incidents. The agency charged that on February 16, 1999,
petitioner engaged in disrespectful conduct towards a Senior Customs
Inspector and a Special Agent in the presence of several agency employees
and civilians. On that date, shortly after the other two incidents, the
agency charged petitioner with engaging in a disrespectful manner with
her Group Supervisor over the phone. On February 8, 2000, petitioner
filed a mixed case appeal with the MSPB.
A hearing was held on April 18, 2000. After the hearing, the AJ issued
her Initial Decision finding that petitioner failed to demonstrate
that the suspension was issued based on discrimination as she alleged.
As to her claims of discrimination based upon race and sex, petitioner
attempted to show that she was treated differently than her Partner
(white, male) who did not receive any discipline when he exhibited
inappropriate behavior in August 1998. The AJ found that petitioner and
her Partner were not similarly situated in that petitioner's conduct
and response to the charges were far worse than the Partner's conduct
and his response to the charge. The AJ further found that petitioner
failed to show a nexus between the agency's action and her race or sex.
As to petitioner's claim of retaliation, the AJ found that she failed to
demonstrate a nexus between the suspension and her protected activity.
Accordingly, the AJ issued her Initial Decision finding that petitioner
failed to prove her claim of discrimination.
This petition followed. In her petition, she argues that she had
gone to the EEO office to complain about harassment by her Partner.
In return, her Supervisor at that time issued her and her Partner a
Notice of Counseling on July 21, 1998. One month later, her Partner
allegedly violated the notice and yelled at her and an INS Supervisor
in public using profanity. The Partner was never punished because the
Group Supervisor determined that he had just had a �bad day.� Petitioner
argues that her actions were less severe than her Partner's outburst
and yet he did not get punished.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
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). For petitioner to prevail, he 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 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).
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 petitioner has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. 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).
Here, in response to petitioner's claims of discrimination, the
agency presented evidence that petitioner was suspended based upon her
disrespectful conduct on February 16, 2000. The record indicates that
on the date in question, petitioner acted improperly toward a Senior
Customs Inspector and a Special Agent in an open area in front of other
employees and prisoners. After those outbursts, petitioner telephoned
her Group Supervisor and proceeded to yell into the phone and accused the
Group Supervisor of discriminating against her by assigning more shifts
to her than her Partner. Petitioner admitted to speaking on the phone
in a loud manner and did so in the presence of other Special Agents.
Further, the Group Supervisor testified that she has had problems of this
kind with petitioner before and this incident involved many individuals
and was witnessed by civilians. Upon a review of the record, we find
that the agency has articulated a legitimate, nondiscriminatory reason
for its action.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the petitioner to demonstrate
that the agency's articulated reason was a pretext for discrimination.
Petitioner argued that her Partner had acted in a worse manner and
was never disciplined. The record indicates that the only complaint
the Group Supervisor received about the Partner came from petitioner
and an INS Supervisor about an incident in September 1998. The Group
Supervisor determined that the Partner only had a �bad day� and was very
remorseful during the counseling session she had with him. The Group
Supervisor also indicated that the Partner apologized for the incident
which was in contrast to the incident involving petitioner. The Group
Supervisor determined that petitioner's actions were more serious because
she had been angry the whole day and was angry with everyone that day.
Furthermore, the record indicates that this was not the first time
petitioner's conduct was improper and disrespectful. Accordingly, we
find that petitioner has failed to show that the agency's articulated
reason was pretext for discrimination. Therefore, the AJ's determination
that petitioner failed to establish that she was discriminated against
was correct.
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the initial decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB'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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 28, 2001
__________________
Date