01a45577
11-23-2004
Lorenzo Vaden, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Lorenzo Vaden v. Department of the Air Force
01A45577
November 23, 2004
.
Lorenzo Vaden,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A45577
Agency No. 9V1M03455
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
Complainant was hired as an Aircraft Engine Repairer, WG-8602-05, at the
agency's Oklahoma City Air Logistics Center, Directorate of Maintenance,
Engine Division, Engine Production Branch, Engine Test Center, Tinker
Air Force Base, Oklahoma, subject to a one-year probationary period.
Complainant sought EEO counseling and thereafter filed a formal
complaint on November 20, 2003. Therein, complainant claimed that he
was discriminated against on the bases of race (African-American) and
in reprisal for prior EEO activity when:
on August 1, 2003, he was issued a Notice of Decision to Terminate During
Probationary Period, effective the same day.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of race or reprisal discrimination because he did
not show that he was treated less favorable than similarly-situated
individuals outside his protected classes. Moreover, the agency found
that complainant failed to present any evidence which demonstrated
that the agency's articulated reasons for its actions were a pretext
for discrimination.
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 complainant to prevail, 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. See 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. See 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. See 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
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See 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); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, the Commission finds that the evidence supports a
determination that the agency articulated legitimate, non-discriminatory
reasons for its employment actions. The agency presented evidence
supporting a determination that complainant was terminated based on
failure to qualify during his probationary period.
The record in evidence contains a copy of complainant's first-level
Supervisor (Supervisor). Therein, the Supervisor stated that complainant
was terminated �due to his repeated misconduct thus affecting his
suitability for government service.� The Supervisor further stated the
agency's actions were prompted primarily by his poor attendance record,
and not because of his race or prior protected activity. Specifically,
the Supervisor stated that on August 7, 8, 9 and 12, 2002, complainant was
tardy for work and no leave was requested; on September 23, 2002, January
3 and 7, 2003, complainant was tardy for work, and because no leave was
requested, he was charged Absence Without Official Leave (AWOL); and that
on November 26 and 27, 2002, complainant failed to report to duty; and
because complainant did not have a prior approved leave request, he was
charged AWOL. Moreover, the Supervisor stated that on July 22 and 23,
2002, complainant requested unscheduled leave but was informed that he was
needed at work and that his requested leave was denied. The Supervisor
stated that when complainant failed to report to work on July 22 and 23,
2003, he was charged AWOL because he �failed to honor a valid denial
of a leave request.� The Supervisor stated that on February 5, 2003,
complainant failed to comply with a directive for not properly completing
Work Control Documents. Furthermore, the Supervisor stated that he
discussed complainant's poor attendance record with his supervisor and
that they �kept hoping that he would turn himself around and improve his
attendance and work performance. The Supervisor stated that at the end
of complainant's probationary period, he and his supervisor �decided that
he was just not going to improve and we had to let him go.� Furthermore,
the Supervisor stated that he did not discriminate against complainant
based on his race and was not aware of his prior EEO activity.
Complainant has not demonstrated that the agency's articulated reasons
for its actions were a pretext for discrimination. Accordingly, the
agency's decision finding no discrimination 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
November 23, 2004
__________________
Date