Virginia S. Sanders v. Department of the Army
03A00067
May 18, 2000


Virginia S. Sanders,     )
 Petitioner,             )
                         )
    v.                   )   Petition No. 03A00067
                         )   MSPB No. AT-0752-99-0290-I-1
Louis Caldera,           )
Secretary                )
Department of the Army   )
 Agency.                 )
                         )


DECISION

INTRODUCTION

On March 11, 2000, Virginia S. Sanders (petitioner) timely filed a
petition with the Equal Employment Opportunity Commission (EEOC or
Commission) for review of an Order of the Merit Systems Protection Board
(MSPB) concerning an allegation of discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.<1>  The petition is governed by the provisions of the Civil Service
Reform Act of 1978 and EEOC regulations, 29 C.F.R. § 1614.303 et seq.
The MSPB found that the Department of the Army (agency) did not engage in
discrimination as alleged by petitioner.  For the reasons which follow,
the Commission CONCURS with the decision of the MSPB.

ISSUE PRESENTED

The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated against her based on race
(Black) when she was removed from employment constitutes a correct
interpretation of the applicable laws, rules, regulations, and policy
directives, and is supported by the record as a whole.

BACKGROUND

Petitioner filed an appeal with the MSPB challenging her removal from
employment.  A hearing was held.  On May 21, 1999, the MSPB administrative
judge (AJ) issued an Initial Decision (ID) sustaining the removal
and finding that the agency did not discriminate against petitioner.
Petitioner filed a petition for review by the full Board, which was
denied by Order dated February 24, 2000.  The instant petition followed.

Petitioner was employed by the agency as an intern assigned to Fort
Jackson, South Carolina. On January 3, 1999, she was removed from her
GS-0343-09 Management Analyst position for failure to accept reassignment
to Fort Sam Houston, Texas.

In her appeal to MSPB, petitioner alleged that she had been discriminated
against when, at the conclusion of her internship, the agency failed to
place her in a position at Fort Jackson instead requiring her to move
to Texas.  Petitioner alleged that two other Fort Jackson interns,
who were White and whose internships ended at about the same time as
petitioner's, had been treated more favorably, in that they had been
placed in positions at Fort Jackson.

Sustaining the charges against petitioner, the AJ found, in relevant
part, that petitioner had failed to make out a prima facie case of
race-based discrimination because she had failed to prove that the
comparator employees were similarly situated to her.  In addition, the
AJ found that petitioner "failed to prove, by preponderant evidence,
that the agency's legitimate management reasons for not placing her at
Fort Jackson and removing her was pretextual for race discrimination."

ANALYSIS AND FINDINGS

The Commission must determine whether, with regard to petitioner's
allegation of discrimination, the decision of the MSPB constitutes a
correct interpretation of the applicable laws, rules, regulations,
and policy directives, and is supported by the record as a whole.
29 C.F.R. §1614.305(c).  The Commission finds that the MSPB's decision
is supported by the record and, for the reasons stated below, CONCURS
with its findings.

In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant,
petitioner herein, to initially establish that there is some substance to
his or her allegation.  In order to accomplish this burden the complainant
must establish a prima facie case of discrimination; that is, raise an
inference that unlawful discrimination has occurred.  McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973); see also Furnco Construction
Corp. v. Waters, 438 U.S. 567, 576 (1978).  The burden then shifts to
the agency to articulate a legitimate, non-discriminatory explanation for
its action.  Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981).  Once the agency has articulated such a reason, the question
becomes whether the proffered explanation was the true reason for the
agency's action, or merely a pretext for discrimination.  St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 511 (1993).  Although the burden
of production, in other words, "going forward," may shift, the burden
of persuasion, by a preponderance of the evidence, remains at all times
on the complainant.  Burdine, 450 U.S. at 256.

In order to make out a prima facie case of discriminatory nonselection,
a petitioner must show that 1) she was a member of the protected group(s)
she claims; 2) she was qualified for the position; 3) she was not selected
for the position; and 4) she was afforded treatment different from that
given to a person (or persons) not belonging to her protected group(s)
but otherwise similarly situated. McDonnell Douglas, supra; Williams
v. Dept. of Education, EEOC Request No, 05970561 (August 6, 1998).
In this case petitioner has not shown that she was similarly situated
to the other interns who were placed in positions at Fort Jackson.  Most
significantly the comparator employees received training different from
that which petitioner received and were placed in positions appropriate
for their training. Nor has petitioner presented other evidence from
which such an inference of discrimination could be drawn.

Further, even if a prima facie case had been established, the agency
met its burden to explain its actions.  The facts as set forth in the
AJ's decision, incorporated by reference herein,  support the agency's
explanation for its decision to place petitioner in a position in Texas.
We note, in particular, that petitioner conceded on cross-examination that
her training and experience made her "better suited" for the position she
was offered in Texas than for the positions she sought in South Carolina.
CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
CONCUR with the final 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 policy directives
governing this matter, and is supported by the record as a whole.

STATEMENT OF PETITIONER'S RIGHTS

PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)

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:


May 18, 2000
    Date                 Carlton M. Hadden, Acting Director
                         Office of Federal Operations





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.