01A44484_r
09-21-2004
Rhonda Y. McCollum, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Rhonda Y. McCollum v. Department of Agriculture
01A44484
September 21, 2004
.
Rhonda Y. McCollum,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A44484
Agency No. 010412
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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.
The record reveals that during the relevant time, complainant was
hired as an Imaging Processor, GS-1101-4, at the agency's Rural Housing
Service, Rural Development in St. Louis, Missouri, subject to a one-year
probationary period. Complainant sought EEO counseling and subsequently
filed a formal complaint on March 16, 2001, alleging that she was
discriminated against on the bases of sex (female) and in reprisal for
prior EEO activity when:
1. on February 5, 2001, her supervisor allegedly grabbed her shoulder
and shoved her; and
2. on March 2, 2001, complainant was terminated from her position of
Processor, GS-01101-04, during her probationary period.
At the conclusion of the investigation, complainant was informed of
her 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 discrimination based on sex because she did
not show that she was treated less favorably than similarly-situated
individuals outside of her protected class. The agency concluded that
complainant established a prima face case of reprisal discrimination.
The agency further concluded that management articulated legitimate,
nondiscriminatory reasons for its actions and complainant failed to show
that these reasons were a pretext. Specifically, the agency presented
evidence supporting a determination that complainant's supervisor
touched her on the shoulders in order to get her attention because she
was wearing headphones; and that complainant was terminated because
of her poor conduct, and that she showed no improvement in her conduct
after being counseled on several occasions. 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. Regarding claim 1, the agency
presented evidence supporting a determination that complainant's
supervisor touched her on the shoulders in order to get her attention
because she was wearing headphones. The record in this case contains
an affidavit from complainant's Supervisor. Therein, the Supervisor
denied shoving complainant on February 5, 2001. The Supervisor further
stated that on February 5, 2001, he approached her desk and asked her
twice if she could hear him but received no response. The Supervisor
stated that he knew complainant could hear and see him because he was
"in her peripheral vision." The Supervisor stated that complainant then
placed her headphones on and started typing, and that he "then lightly
touched her on the shoulder to get her attention and she �exploded.'"
Regarding claim 2, the agency determined that complainant was terminated
due to her poor conduct, and not because of her prior protected activity.
The agency further determined that complainant failed to show any
improvement in her conduct after receiving counseling on several
occasions. In his affidavit, the Supervisor stated that complainant
"was uncooperative, disrespectful and failed to follow directions."
The Supervisor stated that he counseled complainant "repeatedly
however she failed to correct her behavior." The Supervisor stated
that he wrote a memorandum documenting the October 4, 2000 discussion
he had with complainant concerning her six-month review and conduct.
The Supervisor stated that in the memorandum, he advised complainant
that "in her job she was required to conduct herself in a professional
manner when communicating with her supervisors, customers and peers."
The Supervisor stated that following the February 2001 incidents
involving complainant's inappropriate behavior, he made the decision
to recommend complainant be terminated during her probationary period.
The Supervisor stated that he made every effort to help complainant
correct her behavior and that he "needed employees who were not only
good performers but who would cooperate and follow instructions."
With respect to complainant's claim that she was told that she could
resign if her EEO complaint was dropped, the Supervisor stated that he
did not recall anyone making the statement to complainant.
The record also contains an affidavit from the Employee Relations
Specialist (Specialist). Therein, the Specialist stated that management
has authority to terminate a probationary employee "for conduct and/or
performance reasons." The Specialist further stated that based on the
documentation, complainant was provided with counseling concerning
her conduct and that her conduct had not changed. With respect to
complainant's claim that she was told that if she dropped her EEO
complaint she would be allowed to resign instead of be terminated, the
Specialist stated that she could not imagine this would have been said
because it "would have been inappropriate, employees are entitled to their
rights. I would never have advised management to make such a statement."
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
September 21, 2004
__________________
Date