proposal to change her position and grade from Electronics Technician, GS-6, to that of Custodial Laborer, WG-01, for failure to meet the requirements of the TADA and unsatisfactory performance as an electronics technician. On September 21, 1981, plaintiff met with the Regional Personnel Officer and objected to the proposed reduction on the grounds that physical problems with her arms and head would prevent her from performing duties as a custodial laborer. Plaintiff contacted the agency counselor on September 22, 1982 alleging discrimination based on a handicapping condition because she would be required to undergo a fitness for duty physical examination. The fitness for duty examination was performed on September 30, 1982.
33. After the fitness for duty examination was performed, the physician notified the agency that the plaintiff could not perform the duties of a custodial laborer without it aggravating her physical condition. As plaintiff's unsatisfactory performance as an electronics technician required her return to her old position of custodial laborer under the terms of the TADA and as she was unfit to perform the duties of the custodial laborer position, and as there was no other position within the agency for which the plaintiff was qualified, the agency proposed to remove plaintiff. Advance notice of the proposed removal was given plaintiff on October 15, 1982. By notice of final agency action dated November 18, 1982, plaintiff was removed, effective November 19, 1982.
34. Plaintiff appealed her removal to the MSPB on November 23, 1982. She alleged racial and sex discrimination in connection with the systematic withholding of training, disparate treatment, discrimination based upon a handicapping condition and reprisal for having filed a formal complaint of discrimination. A hearing was scheduled to be held before the MSPB on or about March 16, 1983. That was later continued to April 4, 1983. The MSPB's final decision upholding the agency's motion was issued December 21, 1983. No separate appeal was taken by plaintiff since she had a pending civil action.
35. On March 1, 1983, plaintiff filed the first of two civil actions, alleging discrimination based on race and sex in connection with her employment with the General Services Administration. Specifically, the complaint alleged disparate treatment in regard to plaintiff's pay level and lunch schedule, issuance of a letter of counselling, and termination of employment. Plaintiff's second complaint dated May 18, 1983 included the same allegations as those raised in the first complaint, with two additional instances of alleged discriminatory conduct; namely, removal from the training program and denial of a promotion to the GS-7 level.
CONCLUSIONS OF LAW
1. The court has jurisdiction over plaintiff's discrimination charges contained in her November 23, 1982 appeal to the MSPB by reason of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-6.
2. The court has jurisdiction over plaintiff's handicap discrimination claim under 5 U.S.C. § 7703(b)(2) since it is "mixed" with the claims of race and sex discrimination. Williams v. Department of the Army, 715 F.2d 1485, 1491 (Fed. Cir. 1983).
3. The court does not have jurisdiction respecting the issues addressed in the agency's adverse ruling on December 15, 1982, because plaintiff failed to file timely administrative charges and also failed to file a complaint in this court within thirty (30) days of receipt of the agency's final decision.
4. A plaintiff in a Title VII case must carry the initial burden under the statute of establishing a prima facie case of intentional discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
5. If the plaintiff succeeds in proving by a preponderance of the evidence a prima facie case, the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Burdine, supra.
6. If the defendant carries this burden, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Burdine, supra; McDonnell Douglas, supra.
7. Title VII does not demand that an employer give preferential treatment to minorities or women. Nor was Title VII intended to diminish "traditional management prerogatives," such as an employer's discretion to determine the proper functions and responsibilities of a particular government position, provided that decision is not based upon unlawful criteria. Burdine, 450 U.S. at 259, quoting Steelworkers v. Weber, 443 U. S. 193, 207, 61 L. Ed. 2d 480, 99 S. Ct. 2721 (1979).
8. Plaintiff met her burden of proving a prima facie case of race or sex discrimination. However, the defendant articulated through the introduction of oral and written testimony, legitimate, non-discriminatory reasons for the issuance of the letter of counselling, failure to promote, removal from training and ultimately her removal from employment, namely, unsatisfactory performance under the TADA, and unavailability of other positions for which plaintiff was qualified and capable of performing.
9. The defendant has rebutted the plaintiff's prima facie case.
10. The plaintiff has failed to demonstrate that the reasons articulated by the defendant were a pretext for unlawful discrimination.
11. Plaintiff has failed to show that "but for" sex or race discrimination she would have received promotions, completed the TADA and not been removed from employment. See 42 U.S.C. § 2000e-5(g); Richerson v. Jones, 551 F.2d 918, 923-925 (3d Cir. 1977).
12. Plaintiff failed to prove by a preponderance of the credible evidence that the GSA's actions were motivated by handicap discrimination.
An appropriate order follows.
AND NOW, this 22nd day of June, 1984, for the reasons stated in the accompanying memorandum, JUDGMENT is entered in favor of the defendant, General Services Administration, and against plaintiff.
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