01971126
03-07-2000
Claudia Phillips, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Claudia Phillips v. Department of Agriculture
01971126
March 7, 2000
Claudia Phillips, )
Complainant, )
) Appeal No. 01971126
v. ) Agency No. 940527
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
______________________________)
DECISION
Claudia Phillips filed a timely appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black) and reprisal (prior EEO activity), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> Complainant alleges she was discriminated against when: (1)
she was placed on leave restriction, and (2) she was not selected for
the position of Accounting Technician GS-525-6. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the relevant time period, complainant was
employed as a Research Clerk GS-503-4, at the agency's National Finance
Center, Travel and Transportation Section, Administrative Services Branch.
Complainant alleged that she was unfairly placed on leave restriction
because a white employee with a similar leave record was not put on
leave restriction. She further alleged that she was not selected for the
position of Accounting Technician because a supervisor gave a racially
biased accounting of her employment history to the selecting official
which resulted in her not being selected. Lastly, complainant alleged
that a supervisor (S1) accused complainant of making threats on S1's
life in reprisal for her filing an EEO complaint.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on May 27, 1994. At the
conclusion of the investigation, complainant requested that the agency
issue a final agency decision.
The agency concluded that complainant established a prima facie case
of race discrimination on the issue of her non-selection because she
demonstrated that she was qualified for, applied for, but was not
selected for the position of Accounting Technician, and that a white
employee was selected.
The agency concluded that complainant failed to establish a prima
facie case of race discrimination with respect to her placement on
leave restriction because two white employees had also been issued leave
restriction letters. The agency also concluded complainant did not show
that its legitimate non-discriminatory reasons for placing her on leave
restriction were a pretext for discrimination.
Issues Regarding the Administrative Process
On appeal, complainant makes no new contentions except to elaborate on
her perception that the EEO counselor exhibited undue bias during the
counseling phase of the process. The Commission has specific instructions
set forth in the EEOC- Management Directive (MD) 110 regarding the agency
EEO counseling process which was recently updated on November 9, 1999.
Specifically, the EEOC-MD 110 instructs agencies in such areas as
ensuring the independence of their EEO offices and in avoiding even the
appearance of conflicts of interest. See, EEOC-MD110 p. 1-2.
Complainant also pointed out that the agency delayed issuing a final
decision a total of 547 days (from April 5, 1995 the date of complainant's
request for a decision to October 23, 1996, the date of the final
decision). Under our regulations, specifically, 64 Fed. Reg. 37657,
July 12, 1999 (to be codified at 29 C.F.R. �1614.110(b)), the agency is
required to issue its decision within 60 days of complainant's request.
We note the agency failed to comment or to indicate what actions it took
to address the inordinate amount of time it took in issuing a decision.
Under our new procedures, information regarding dissatisfaction with the
processing of a complaint and the agency's response to such are to be made
part of the complaint file so that reviewing authorities can determine
whether the agency's actions had a material affect on the processing of
the complaint . Preamble to the Regulations 64 Fed. Reg. 37646, July
12, 1999; EEOC-MD 110 p.5-25; See also, Hesken v. Department of State,
EEOC No. 01952462, (July 2, 1996)( the failure to issue a decision within
60 days did not form a sufficient basis for a finding of discrimination.)
Complainant's Allegations
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Texas Department of Community Affairs v. Burdine,
450 U.S.248 (1981); United States Postal Service Board of Governors v.
Aikens, 460 U.S. 711, (1983) and Hochstadt v. Worcester Foundation 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), we find that Complainant has made out a prima facie case of race
discrimination on both the issue of her placement on leave restriction
and her non-selection for the position of Accounting Technician.
We also find that complainant established a prima facie case of reprisal
because she engaged in EEO activity by contacting an EEO counselor, the
supervisor in question was aware that she had contacted an EEO counselor
and complainant suffered an adverse employment action reasonably close
to the time of the protected activity.<2>
The Commission, however, finds that complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions on all three issues were a pretext for discrimination.
In reaching this conclusion, we note that on the issue of complainant's
leave restriction, complainant failed to establish her restrictions
were discriminatory in light of the supervisor's (S2)(White, no prior
EEO activity) restrictions on others, both Black and White with similar
records.
On the issue of the complainant's non-selection, complainant conceded that
the selecting official's (SO) (Black, no prior EEO activity) selection was
not discriminatory, but she contends that the information given to the
SO was racially biased causing her not to be selected. The Commission
does not agree with complainant because, as stated above, her leave
restriction was not discriminatory. We further note that complainant
failed to refute the fact that the selectee<3> had a better performance
appraisal and, despite complainant's representation otherwise, had an
equivalent score on the ranking factors.
Complainant alleges that she suffered reprisal in the form of written
statements made by S1 and a witness outlining complainant's threats made
during the EEO complaint process. We disagree that S1's actions were in
reprisal for Complainant's EEO activity because the record reflects that
S1 acted in reaction to the witness's report to S1 of complainant's
statements. The witness's version of complainant's statement -
"do you know how to dodge bullets?...well you had better practice,
because bullets are going to fly" - was such that a reasonable person
would be threatened. We are persuaded that the supervisor's reliance
on the witness's interpretation of complainant's statements rather than
complainant's protected EEO activity prompted the supervisor to report
and make a record of the incident.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
3/7/00 ____________________________
DATE Carlton 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
1On 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.
2The Commission makes this finding sua sponte because the agency did
not decide the issue of reprisal even though it accepted the issue for
investigation.
3The record reflects that the first selectee (Black, no prior EEO
activity) similarly had a better performance appraisal but was hired by
another unit.