Justina Thompson-Wesley v. Department of the Army
02970012
August 24, 1999
Justina Thompson-Wesley, )
Appellant, )
)
v. ) Appeal No. 02970012
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
INTRODUCTION
On September 3, 1996, Justina Thompson-Wesley (the appellant) timely
filed an appeal with the Equal Employment Opportunity Commission (the
Commission) from a final (third step) agency decision dated August 16,
1996, concerning her grievance filed against the Department of the Army
(the agency) dated April 25, 1996. In her grievance, appellant alleged
that the agency discriminated against her in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
appellant had failed to prove that the agency had discriminated against
her based on her race (black) and reprisal when she was issued a Notice
of Proposed Removal, and when two job vacancy announcements for which
she had applied were canceled.
BACKGROUND
Appellant filed a grievance on April 25, 1996, regarding the Notice
of Proposed Removal issued by management officials on March 7, 1996,
and the Notice of Decision - Removal issued on March 28, 1996, as well
as the Decision - Suspension and Last Chance Agreement, both also dated
March 28, 1996 (Grievance 1). In Grievance 1, appellant alleged that
management officials had issued her the Notice of Proposed Removal because
of "racial discrimination, sexual discrimination and revenge" to prevent
her from being considered for one of two vacant supervisory positions
within her branch. The reason management officials cited for the Notice
of Proposed Removal was "falsifying information on sign-in sheets" in
violation of the Army policy on waste, fraud and abuse. The Notice of
Proposed Removal noted that appellant had previously been warned about
falsifying sign-in sheets in a memorandum dated September 15, 1995.
That memorandum specifically stated that if another incident occurred,
"proposed removal from Federal Service may be recommended."
Appellant filed an extensive reply to the Notice of Proposed Removal in
which she stated that she had longstanding (verbal) permission from her
supervisors that she could work on her assignments at home and sign in and
out in a manner that reflected the amount of hours worked at home. She
also stated that she had permission to work through her lunch time and
count that as part of her day. Appellant theorized that the Notice of
Proposed Removal was motivated by racial and sexual discrimination on
the part of one of her supervisors. She also theorized that a co-worker
had supplied management with evidence of sign-in sheet discrepancies in
revenge for her not going along with the co-workers "plan" to discredit
the chief of the division. Appellant submitted copies of selected sign-in
sheets showing that other employees made notations on the sheet about
having worked through their lunch periods in order to account for an 8
hour day.
At a meeting on March 28, 1996, where the Decision - Removal letter
was presented to appellant, the agency also gave her the option of
accepting a Decision - Suspension letter, in which she could accept a
14 day suspension instead of being removed from employment, and Last
Chance Agreement. The Last Chance Agreement specified that appellant
would acknowledge her misconduct and have no further misconduct problems
(of any sort), and in return the Notice of Proposed Removal would not
take effect. On April 4, 1996, appellant accepted the Suspension and Last
Chance Agreement option because she did not wish to lose her job, but she
presented a letter of protest she had written detailing her objections to
its terms and her belief that it was unconstitutional and a violation of
her civil rights. As part of Grievance 1, appellant submitted copies of
the Decision letters, the Last Chance Agreement, her letter of protest,
all the documentation she had previously submitted in her reply to the
Notice of Proposed Removal and a statement from a co-worker that he had
verbal permission from his supervisor to work through lunch periods in
order to make up for time discrepancies. Grievance 1 was denied at Step 2,
and she appealed it to Step 3.<1>
Appellant filed a second grievance on May 7, 1996 (Grievance 2) alleging
that management officials had canceled two job vacancy announcements
for two supervisory positions within her branch in reprisal and for the
purpose of preventing appellant from attaining one of those positions.
Appellant alleged that the cancellation was announced the day after she
had filed her Step 2 grievance and that "this is not merely coincidence."
She argued that the official had decided to cancel the recruitment actions
once the official knew the contents of appellant's Step 2 grievance.
Grievance 2 was denied at Step 1 and Step 2, and appellant further
appealed it to Step 3.
In the third step grievance decision dated August 16, 1996, which combined
both of appellant's grievances, the agency official found that appellant
had not intended to defraud the government on the date cited in the
Notice of Proposed Removal, March 4, 1996. He further found that the
proposed termination and the two week suspension were both inappropriate.
He changed the discipline to charging the appellant one hour of leave
time to reflect the amount of time that she was late. It was noted
that although appellant had flexibility in her arrival time, she was
not authorized to work through lunch, nor could her supervisor approve
such a request. Regarding appellant's claim that she was authorized
to work at home and count that as official time, he found that she
needed prior approval from a supervisor whenever she intended to do so.
He removed the 14 day suspension from her record and awarded her pay for
that period of time, although he did not award interest on that pay.
Her allegations of discrimination were not addressed with respect to
Grievance 1. The agency official also found that appellant had not
proved that the job vacancy announcements were canceled in order to
prevent her from receiving the positions and that her civil rights were
not violated. He stated that the management official had the right to not
make a selection from the current applicants and that the cancellation
decision was made before appellant had submitted Grievance 1. The fact
that it was announced after her submission was a "coincidence."
This appeal followed. In her appeal, appellant claims that the agency
official erred in that he had not found that she had been discriminated
against, especially given the "indisputable evidence of discrimination"
she had included in the record. She points out that a co-worker was
given permission from his supervisor to work through lunch and that the
co-worker is white. Appellant requests that the Commission award her
the full relief she sought in her grievances: 1) a determination that
the Negotiated Agreement was violated; 2) a determination that she was
discriminated against based on her race, color and reprisal; 3) to be
awarded the interest on the back pay that was restored to her when the
suspension was overturned and back pay was granted; 4) to be placed in
one of the two vacant supervisory positions to which she had applied;
5) to be awarded back pay with interest for the supervisory position
retroactive to March 13, 1996; and 6) compensatory damages in the amount
of $1,500,000.<2>
The agency response to the appeal argued that because the agency official
who decided the Step 3 grievance did not address appellant's allegations
of discrimination in Grievance 1, there is no issue present for review by
the Commission. The agency alternatively argued that, if the Commission
should decide that there is a reviewable issue, no evidence of prohibited
discrimination had been placed in the record and that the agency had
not acted because of an improper motive. Regarding Grievance 2, which
alleged that the job announcements had been canceled due to reprisal,
the agency argued again that no evidence of prohibited discrimination had
been adduced and the agency had not acted because of an improper motive.
In addition, it was argued that appellant had not stated a claim on
the reprisal issue because there was no guarantee that appellant would
have been selected for one of the open positions. Even had she stated a
claim, the agency further argued that she had not met the requirements
for a prima facie case, because no selection had been made and all the
other applicants were in the same position as the appellant. Lastly, the
agency argued that it is beyond the Commission's jurisdiction to grant
relief on the issues of the violation of the Negotiated Agreement and
on ordering an investigation into the misappropriation of federal funds.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.401(c) provides that a grievant may appeal
to the Commission from a final decision of the agency, the arbitrator
or the Federal Labor Relations Authority on a grievance when an issue of
employment discrimination was raised in a negotiated grievance procedure
that permits such issues to be raised.
The agency argued that the decision on appellant's Grievance 1 could
not be reviewed by the Commission and cited Johnson v. Equal Employment
Opportunity Commission, EEOC Request No. 05910188 (March 20, 1991)
as its authority for that argument. We find, however, that Johnson
does not control this case, as it stands for the proposition that the
Commission does not have jurisdiction to review procedural determinations
by an agency solely related to the grievance process and the collective
bargaining agreement, such as the timeliness of the filing of the
grievance or the timeliness of filings of appeals from the original
Step 1 decision. In this case, the agency merely failed to address the
merits of appellant's discrimination claims in Grievance 1 at the Step
3 level. Therefore, we find that the Commission does have the authority
to entertain an appeal on the agency's decision regarding Grievance 1.
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 appellant 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.
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 complainant 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
appellant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. U.S. Postal Service Board 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).
In this case, the agency presented evidence that appellant had been
counseled and issued a memorandum regarding her sign-in sheet practices,
and told that she should discontinue entering false information on the
sign-in sheets, regardless of whether it reflected time worked at home.
Appellant was warned that if she continued to engage in this practice she
could be subject to termination. After becoming aware that appellant was
still signing in at times that did not reflect her arrival at the office,
the agency issued the Notice of Proposed Removal. 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 appellant to demonstrate that the
agency's articulated reason was a pretext for discrimination. We find
that appellant has failed to do so. Although appellant consistently made
allegations of racial and sexual discrimination throughout the course of
pursuing her grievance, she presented very little actual evidence to show
how discrimination was present. She placed in the record the statement of
one co-worker (not in her protected class) who was told he had permission
to work through his lunch periods if he needed to in order to complete an
8 hour day, but we find that he was not similarly situated to appellant.
The co-worker spoke to his supervisor about altering his work schedule
on a long term basis during his wife's illness, and planned to return
to his usual schedule upon her recovery. Unlike appellant, who seemed
to count work at home and work through lunch whenever she needed to,
the co-worker's arrangement with his supervisor was for a specified
amount of time. This co-worker also did not have the same supervisor as
appellant. In addition, appellant submitted copies of selected sign-in
sheets that reflected notations made regarding other co-workers who had
worked through lunch to complete an 8 hour day. There is no evidence
in the record, however, as to whether any of these co-workers had been
given permission to do so from their supervisors on those occasions.
Therefore, appellant has failed to establish that the agency's articulated
reason for its action was pretext and that she was discriminated against.
We next turn to an examination of whether appellant proved that the agency
had engaged in reprisal when it canceled the job vacancy announcements.
To establish a prima facie case of reprisal, an appellant must show that:
1) she was engaged in protected activity; 2) the alleged discriminating
officials were aware of the protected activity; 3) the appellant was
subsequently subjected to adverse treatment; and 4) the adverse action
followed the protected activity within such a period of time that
retaliatory motivation may be inferred. Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.),
affirmed 545 F.2d 222 (1st Cir. 1976); Manoharan v. Columbia University
College of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988);
Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987); Frye v. Department
of Labor, EEOC Request No. 05940764 (December 15, 1994).
Appellant's prima facie case of reprisal fails on the second element,
whether the alleged discriminating management officials were aware
of her participation in protected EEO activity. Appellant had made
allegations of discrimination in the grievance process. There is no
evidence, however, that the official who made the decision to cancel the
job vacancies actually knew about or saw her grievance prior to making
the decision and announcing the cancellation. The prima facie case
additionally fails on the third element, in that there is no adverse
action suffered by appellant from the agency's cancellation of the
vacancies. Therefore, appellant has not proven that she was subjected
to discrimination based on reprisal.
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. §1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
August 24, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 At the Step 3 grievance level, appellant no longer alleged that the
discrimination was in part due to her sex, and specified only race and
color, according to her May 10, 1996 statement in support of her Step 3
appeal.
2 Appellant also requested that an investigation be conducted into
"misappropriations of federal funds," a reference to alleged discrepancies
between the various projects on which appellant had spent her time and
the cost codes to which her time was actually charged.