0120112987
10-26-2011
Ana Camacho, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Food Safety and Inspection Service), Agency.
Ana Camacho,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Food Safety and Inspection Service),
Agency.
Appeal No. 01-2011-2987
Agency No. FSIS201000205
DECISION
On May 25, 2011, Complainant filed an appeal from the Agency’s April
19, 2011 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission
deems the appeal timely and accepts it for de novo review pursuant to
29 C.F.R. § 1614.405(a). 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 an Intermittent Consumer Food Safety Inspector (GS-1863-05)
assigned to the Excel Plant 86F in Friona, Texas. On April 19, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (Hispanic), national origin (Mexico),
sex (female), disability (association-child's disability-paralysis)1,
and parental status (single parent) when, on December 1, 2009, she was
removed from her position.
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 decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as
alleged.
ANALYSIS AND FINDINGS
The record shows that an Employee Relations Specialist drafted a
proposal to remove Complainant based on documentation of Complainant's
excessive absences.2 Accordingly, Complainant was terminated based
on unsatisfactory attendance. Complainant does not deny that she was
absent from work on multiple occasions. However, Complainant contends
that she was unavailable because she needed to care for her daughter, who
is paraplegic. However, the record shows that prior to her termination
Complainant failed to communicate that she was unavailable because she
was responsible for caring for her paraplegic daughter.
The Agency concluded that Complainant failed to show that the Agency’s
legitimate, non-discriminatory explanation for its employment decision
was pretext for unlawful employment discrimination.
CONCLUSION
We assume for the purpose of this decision that Complainant established
a prima facie case of discrimination with respect to each bases alleged.
However, based on a thorough review of the record, we find the record
supports the Agency’s analysis and conclusions. Accordingly, we AFFIRM
the Agency’s final decision.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
October 26, 2011
__________________
Date
1 Complainant claims that she was discriminated due to her daughter’s
disability.
2 Complainant's position as an Intermittent Food Inspector requires that
she be available for all shifts and able to report to duly within one
hour after receiving a request (by phone) to report for work.
3 We note that Complainant does not raise any argument on appeal.
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01-2011-2987
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013