0120130713
03-27-2015
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.
Appeal No. 0120130713
Hearing No. 531-2011-00188X
Agency No. APHIS-2010-00763
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 7, 2012 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
On April 30, 2010, Complainant was hired as a Program Assistant at the Agency's Office of International Collaboration Accreditation Program, Centers for Epidemiology and Animal Health in Riverdale, Maryland, not to exceed twelve (12) months.
On September 20, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of race (African-American) and age (over 40) when:
on June 29, 2010, she was placed on administrative leave and subsequently, effective July 20, 2010, terminated from her one-year probationary appointment to a GS-0303-5, Program Assistant position.1
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On October 23, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Complainant and five other temporary employees were hired around the same time to complete a data acquisition/cleansing/entry/verification project that became necessary due to new accreditation regulations that went into effect in February 2010. Complainant was responsible for completing administrative duties and providing technical assistance when needed.
On June 29, 2010, the Veterinary Medical Official placed Complainant on administrative leave, and subsequently, the Veterinarian issued Complainant a termination letter dated July 7, 2010.
The AJ noted that in his affidavit, the Veterinarian stated that during the relevant time he was Complainant's supervisor. The supervisor stated that Complainant was terminated during her probationary period for failure to follow instructions and inappropriate conduct. For instance, the supervisor stated that Complainant deviated from data entry procedures as trained; refused to document her time and attendance on the proper forms; and failed "... to follow my repeated instructions to not walk around our third and fourth floor work spaces asking co-workers where she ([Complainant]) could find me. I told [Complainant] repeatedly that she was to call me on my cell phone, the number of which: 1) was given to all team members; 2) is available through Lotus Notes; and 3) is written on the large white board outside my cubicle. [Complainant's] response each time I implored her to simply call me if she needed me was that she didn't have a phone. I told [Complainant] to use any phone in any cubicle in the building because they are all properly of the agency, not us, and that included her using the phone in my cubicle. [Complainant's] daily walking around asking co workers if they knew where I was impeded both her productivity, as seen on the table above, and that of her co workers."
In support of his assertions, the supervisor prepared a table summarizing four temporary employees' number of forms data entered for the relevant time period. The peer average of three temporary employees was 90.4 while Complainant's performance as a percentage of the peer average was 61.4. Moreover, the supervisor stated that Complainant's race and age were not factors in his decision to terminate her during her probationary period.
The record contains a copy of Complainant's termination letter dated July 7, 2010. Therein, the supervisor placed Complainant on notice that her temporary appointment would be effective immediately upon receipt of the notification. The supervisor stated that he had instructed her repeatedly "through formal training in May 2010 and subsequent conversations that you were not to walk from cubicle to cubicle asking co-workers if they knew where I was. I instructed you to call me on my cell phone if necessary. You were also instructed to come to me with questions so that you would not be interrupting co-workers with their work. You were reminded of these instructions on June 17, 2010."
Further, the supervisor notified Complainant that on June 3, 2010, a named Agency official gave a seminar concerning the use of CEAH Time and Attendance (T&A) report, and "all temporary personnel were instructed by me to use the current T&A format, not the old version. [Agency official] provided a copy of the new time sheet on June 15, 2010. You failed to follow my instruction when you used the old T&A version to submit your time for Pay Period 12."
The supervisor noted that Complainant had informed him that she could not work in the third floor office where her workstation was located due to air quality and fumes on June 17, 2010. The supervisor instructed Complainant to leave the third floor work office and find another area to stay until there was a further determination on this matter. The supervisor stated that Complainant notified him that she found a suitable place in the library. The supervisor stated, however, he went up to the third floor the next day, June 18, 2010, and observed Complainant in the office room "in front of her workstation and computer, with Lotus Notus open. You failed to follow my instructions when you returned to the 3rd floor office without permission."
Further, the supervisor stated that on June 18, 2010, Complainant notified him that she was not certain she would report to work on June 21, 2010 and "during our conversation, we agreed that I would grant you one week of leave without pay on the condition that you were required to call me and notify me on Monday, June 21, 2010 if you were not going to report for duty. You did not report to work on June 21, 2010 and you did not report to work on June 22, 2010. Not only did you not report to work on June 21st and 22nd, you did not call to inform me, as instructed, that you were not reporting for duty."
Moreover, the supervisor stated that on June 25, 2010, errors were found on the Veterinary Accreditation Applications that Complainant processed. Specifically, the supervisor determined that Complainant did not follow proper procedures "when inputting application data. You had been trained in May 2010 on the proper procedures for processing information...this resulted in you having to redo approximately 30 applications. You did not request permission to deviate from the processes in which you were trained. Your misconduct undermines the basic employee/employer trust and impedes the goals and objectives of the agency."
The Employee Relations Specialist (Specialist) stated that during the relevant period she provided guidance to the supervisor concerning his request for a termination notice. The Specialist stated "the basis of my advice and counsel was [supervisor's] description of complainant's overall performance and conduct deficiencies, the Temporary employment status of the complainant, and the length of employment of the complainant. The complainant violated USDA rules and regulations and failed to follow the instructions given to her by her managers/supervisors as outlined in the Termination notice dated July 7, 2010. I did not provide 'instructions' to [supervisor], I provided advice and guidance and at [supervisor's] request I prepared the termination notice."
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
Complainant, on appeal, argues that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant states that her supervisor "used performance as a reason for terminating Complainant when he had not discussed any goals or expectations with her. He had not discussed her performance with her at all...[supervisor] did not scrutinize the other employees the way he did the Complainant. It appears he had all of the five permanent staff reporting the Complainant's movements to him."
Further, Complainant argues that the Veterinary Medical Official and Specialist were not truthful in their sworn affidavits. Specifically, Complainant argues when the Veterinary Medical Official was asked if Complainant's performance had been assessed, he responded he had no idea because he was not her supervisor. Complainant also argues "there was no 'Improper Conduct' or 'Unacceptable Performance' in regard to the Complainant's termination. The Agency has presented no evidence that there was improper conduct. Her performance was in line with all of the temporary employees hired for the same position. Everyone involved in the termination of the Complainant was Caucasian."
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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).
We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We discern no basis to disturb the AJ's decision
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
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
March 27, 2015
__________________
Date
1 The record reflects that the termination letter was dated July 7, 2010, but it was not effective until Complainant's receipt of the letter.
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0120130713
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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