Dominica H.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJun 29, 20180120162494 (E.E.O.C. Jun. 29, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominica H.,1 Complainant, v. Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120162494 Agency No. 200H-0005-2015103641 DECISION On July 26, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 15, 2016, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-0343-11, at the Agency’s Regional Office and Insurance Center, Office of Information & Technology (OIT), in Philadelphia, Pennsylvania. On August 28, 2015, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the bases of her race (African-American), age (47), and reprisal when on May 11, 2015, she was terminated during her probationary status from her position as a Management Analyst, GS-0343-11. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120162494 2 The Agency dismissed the basis of reprisal pursuant to 29 C.F.R. § 1614.107(a)(1) on the grounds of failure to state a claim because Complainant did not claim she was being retaliated against due to prior EEO activity but rather for her refusal to falsify time and leave records. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that Complainant failed to prove that it subjected her to discrimination as alleged. The record reflects that Complainant’s Supervisor stated that Complainant was terminated based upon unsatisfactory performance as she failed to demonstrate that she could perform her assigned duties. Specifically, the Supervisor cited Complainant’s failure to complete the required Talent Management System (TMS) mandatory training associated with the essential functions of her job responsibilities as a purchase clerk and her failure to properly record the staff’s time and attendance as the office timekeeper. According to the Supervisor, TMS training is mandatory for purchase clerks. The Supervisor asserted that when Complainant was hired, she was assigned several TMS courses to complete in order to qualify to obtain the government purchase card. The Supervisor explained that without completing the training, Complainant could not make purchases of OIT equipment and supplies. The Supervisor noted that an additional major administrative responsibility for Complainant was that of timekeeper for the office. Complainant was expected to enter into the payroll system the time worked by the staff. The Supervisor stated that one of the staff members worked eight hours of compensatory time during April 2015 but the time was not inserted by Complainant into the system. The Supervisor maintained that he spoke to Complainant on several occasions about correcting the error but she failed to do so. The Agency noted that a Human Resources Specialist stated that he reviewed the termination and found it was warranted. Complainant claimed that a younger, Caucasian coworker who had attendance-related matters and performance issues was not terminated. However, the Human Resources Specialist asserted that the coworker was also going to be terminated during his probationary status, but decided to resign before the termination action was effected. The Agency determined that it provided legitimate, nondiscriminatory reasons for Complainant’s removal. The Agency cited Complainant’s performance deficiencies in terms of not completing the training she needed to obtain a government purchase card, and her timekeeping error and refusal to correct such a mistake. The Agency noted that Complainant attempted to establish pretext by arguing that her similarly situated coworker received more favorable treatment and that she received a “Fully Successful” rating on her performance evaluation. In terms of the performance evaluation, the Agency stated that the appraisal covered the period of June 2014 through September 2014, but that the issues with Complainant’s performance occurred in 2015. As for the coworker, the Agency stated that he was similarly disciplined in that he was issued a termination notice, but he chose to resign. 0120162494 3 The Agency stated that Complainant did not deny the occurrence of the matters that caused her to be terminated. The Agency determined that Complainant failed to provide evidence to support her claims of race and age discrimination. CONTENTIONS ON APPEAL On appeal, Complainant contends that she received a performance appraisal for the period at issue five days before she was terminated and that there was no mention of her alleged deficiencies and she received a rating of “Is considered fully successful or better”. Complainant maintains the alleged deficiencies were fabricated after the fact to justify her termination. With regard to the alleged timekeeping mistake, Complainant states that she never refused to submit the relevant employee’s time. In response, the Agency asserts that there is no indication that the comparison employee cited by Complainant had the same Supervisor or performed the same duties. The Agency states that the comparison employee was notified that he was being terminated and he responded by immediately submitting his resignation. The Agency reiterates that Complainant was terminated based on her failure to comply with training requirements and her inadequate completion of her timekeeper duties. The Agency notes that Complainant argues that these reasons are lies, but asserts that she offers no support for this claim. ANALYSIS AND FINDINGS To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Initially, we observe that on appeal Complainant does not challenge the dismissal of the basis of reprisal. We do not discern evidence in the record indicating this determination was improper and therefore we affirm the dismissal of this basis. We shall assume arguendo that Complainant set forth a prima facie case of race and age discrimination as to her termination. The Agency explained that the termination was the result of Complainant’s performance deficiencies with respect to not completing her training requirements so she could obtain a government purchase card, and her failure and subsequent refusal to insert 0120162494 4 into the system the compensatory time worked by a staff member. We find that the Agency has articulated legitimate, nondiscriminatory reasons for Complainant’s termination. Complainant argues that she was treated less favorably than a younger, Caucasian coworker who had attendance and performance problems. This argument lacks merit. The comparison employee was also notified that he would be terminated. However, the termination was not affected because the coworker chose to resign instead. Complainant maintains that her acceptable performance ratings establish that the reasons for her termination were fabricated after the fact. We are not persuaded that a fully satisfactory performance rating during the relevant period is sufficient to establish discriminatory motivation. Complainant does not deny that she failed to complete the training requirements for the government purchase card or that she did not input the compensatory time for the staff member during her probationary status. Complainant needed to be able to obtain a government purchase card and timekeeping for all staff members was one of her primary job duties. We find that Complainant has failed to establish that the Agency’s reasons for her termination were pretext intended to hide discriminatory motivation. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 0120162494 5 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 29, 2018 Date Copy with citationCopy as parenthetical citation