0120072524
08-16-2007
Georgia Kimbrough, Complainant, v. Robert M. Gates, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Georgia Kimbrough,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120072524
Agency No. 06EASASKF001
Hearing No. 420200600101X
DECISION
On April 30, 2007, complainant filed an appeal from the agency's November
27, 2006, final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a).
Complainant contacted an EEO counselor on May 6, and filed a formal
complaint on October 4, 2005, claiming discrimination based on race
(black) and sex when (a) she was found to be AWOL (away without leave)
on March 22-23, 2005, and (b) management scheduled black employees to
work 24 hours in five days (24/5) and white employees to work 24 hours
over 4 days (24/4). Following an investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ), but the AJ returned
the complaint to the agency on October 27, 2006, for issuance of a final
agency decision (FAD). In the FAD, the agency found no discrimination
on both issues and erroneously gave complainant a right of appeal to the
Merit Systems Protection Board (MSPB). She filed an appeal on December
28, 2006, and, on March 3, 2007, she withdrew her appeal and filed an
appeal with the Commission. Initially, the appeal was docketed as EEOC
Petition No. 0320070060, but was administratively closed on May 24, 2007,
and the instant matter was docketed. Therefore, we find that the agency's
error in affording complainant rights to the MSPB has been cured.
At the time of the events herein, complainant was a Store Worker at
the Redstone Arsenal Commissary, Huntsville, AL. In March 2005, she
was on leave in Texas, and expected to return to work on March 22.
On that date, she called her supervisor (S1) to ask for additional
leave on an emergency basis, stating she was stranded due to severe
weather conditions that impeded her driving. S1 informed her that he
required some documentation upon her return. She returned on March 24,
but she did not submit documentation, and S1 subsequently issued her a
Memorandum of warning, charging her with being AWOL for the two days of
her absence.1 Complainant compared herself to a white, male employee,
who was on vacation in May 2005, and was granted additional leave due
to an illness. The agency stated that the employee, however, presented
documentation from the treating physician and therefore was not charged
with being AWOL. In the second part of her claim, complainant complained
that white employees received more favorable scheduling. According to
the agency, however, the 4/24 schedule required weekend work, and each
employee was asked to chose a schedule in order of seniority. Most of
the more senior blacks chose the 5/24 work schedule.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). Generally, claims
of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
For complainant to prevail, s/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). Once complainant has established a prima facie
case, 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). If the agency
is successful, the burden reverts back to the complainant to demonstrate
by a preponderance of the evidence that the agency's reason(s) for its
action was a pretext for discrimination. At all times, complainant
retains the burden of persuasion, and it is his/her obligation to show
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); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
715-716 (1983).
For purposes of analysis, we will assume, arguendo, that complainant
established a prima facie case of discrimination based on race and sex.
The burden of proceeding moves to the agency to articulate a legitimate,
nondiscriminatory reason for its actions; the agency explained that
complainant was issued AWOL, because she did not present documentation
in support of her request for emergency leave, while the comparative
employee she identified had done so, and, thus, she was not treated
differently. With regard to her second claim about scheduling, she did
not present any evidence that the agency's explanation was not true.
We find that the agency has met its burden to articulate legitimate,
nondiscriminatory reasons for its actions. Once the agency articulates a
legitimate, nondiscriminatory reason for its action, the ultimate burden
of persuasion returns to the complainant to demonstrate by preponderant
evidence that the reason given by the agency for its action is a pretext,
or a sham or disguise for discrimination. The complainant must show that
the agency's action was more likely than not motivated by discrimination,
that is, that the action was influenced by legally impermissible criteria,
i.e., race and sex. We find that complainant has not presented probative
evidence that the agency's reasons were not its true reasons or based
on discriminatory animus; complainant has not shown that the agency
discriminated against her based on her race or sex.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____8-16-07______________
Date
1 S1 stated that he could not find any reports of severe weather during
the two days that complainant was absent from work.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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