0120063982
02-08-2008
Okorie Okorocha, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Okorie Okorocha,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120063982
Agency No. OSH-001-05
DECISION
On June 19, 2006, complainant filed an appeal from the agency's June 13,
2006, final decision concerning his 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that complainant was hired on December 19, 2003 as an
Equal Opportunity Specialist in the agency's Office of Civil Rights in
Dallas, Texas. In a letter dated August 2, 2004, the agency notified
complainant of his termination effective August 16, 2004 for "failure
to conduct [himself] in a manner appropriate for a federal government
professional."
On September 23, 2004, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of national origin (Nigerian)
and in reprisal for prior protected EEO activity when:
1. On June 18, 2004, the agency issued complainant a written notice
of deficiencies and harassed and scrutinized complainant despite his
outstanding performance; and
2. On August 2, 2004, the agency removed complainant during his
probationary period.
In an investigative affidavit, complainant maintained that his termination
was motivated by discrimination because he closed the highest number of
cases in his division, did not receive an award for his performance,
and the Regional Manager harassed him when he told complainant that
"maybe that is the way you people are raised over there [in Nigeria]"
during a meeting.
In an investigative affidavit, the Regional Manager stated that
complainant was terminated during his probationary period because his
"job performance was lacking." The Manager elaborated that although
complainant was given "simple assignments," he showed a lack of
professional demeanor toward supervisors and co-workers by repeatedly
openly criticizing their work. The Manager stated that management tried
to correct complainant's behavior through informal counseling sessions,
but complainant did not change his behavior. The Manager also denied
making any disparaging remarks about complainant's national origin.
The Deputy Regional Manager stated that complainant was terminated
because he failed to correct deficiencies in his conduct after he was
issued a notice of deficiencies on June 22, 2004 that outlined problems
with his behavior. The Deputy Regional Manager stated that complainant
was unable to accept constructive criticism and attacked the credibility
of other employees. The Deputy added that complainant was not given
an award because he was not employed by the agency when the awards were
given at the end of the fiscal year.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his 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 decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged. Complainant
did not submit a statement on appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny. See
Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). For complainant 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). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000).
Assuming arguendo that complainant established a prima facie case
of discrimination, we find that the agency provided legitimate,
non-discriminatory reasons for its actions. Complainant contends that the
agency's actions were motivated by discrimination because the Regional
Manager made a remark about Nigerians during a meeting with the Deputy
Regional Manager, but the Regional Manager denied making the statement,
and the Deputy Regional Manager denied hearing any disparaging remarks
about complainant's national origin. Complainant has not provided any
evidence to corroborate his allegation. We conclude that complainant
failed to prove, by a preponderance of the evidence, that the agency's
articulated reasons for its actions were pretext for discrimination.
Further, to the extent that complainant contends that the agency's
actions constitute harassment, we find that such a claim fails because
he did not prove that the agency's actions were based on his national
origin or his prior protected activity. See Bennett v. Department of
the Navy, EEOC Request No. 05980746 (September 19, 2000). Therefore,
we affirm the agency's final decision.
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:
______________________________ _February
8, 2008_____
Carlton M. Hadden, Director Date
Office of Federal Operations
2
0120063982
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120063982
5
0120063982