Dannie M. Willis, Complainant,v.John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionMar 16, 2005
01a51459 (E.E.O.C. Mar. 16, 2005)

01a51459

03-16-2005

Dannie M. Willis, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.


Dannie M. Willis v. Department of the Treasury

01A51459

March 16, 2005

.

Dannie M. Willis,

Complainant,

v.

John W. Snow,

Secretary,

Department of the Treasury,

(Internal Revenue Service),

Agency.

Appeal No. 01A51459

Agency No. 032552

Hearing No. 310-2004-00275X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's final order in the above-entitled matter.

Complainant alleged that the agency discriminated against her on the basis

of race (African-American), in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and on the

basis of disability, in violation of Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,

when she was terminated from her position as a GS-962-05, Customer Service

Representative during her probationary period, effective August 13, 2003.

Complainant also alleged that she received inadequate training.

The record indicates that complainant, who states that she is visually

impaired, was hired as a probationary employee by the agency on

November 26, 2002 as a Customer Service Representative in Dallas, Texas.

Complainant requested four days of annual leave (May 28, 29, 30 and June

2) in order to attend her daughter's graduation and because family was

coming from out of town. Complainant's supervisor (S1) initially denied

the request due to a staffing shortage, but subsequently on May 8, 2003,

approved two of the requested days, May 28 and 30, 2003. Complainant

told S1 that regardless of the denial, she would not be coming to work

on the remaining two days. S1 stated that complainant would be charged

two days of absent without leave (AWOL) if she did not report to work.

Additionally, S1 gave complainant a memorandum on May 27, 2003, which

complainant signed, stating that if complainant did not report to work

on May 29 and June 2, 2003, she would be charged AWOL, and could also be

removed. Complainant did not report to work for the days in question.

Complainant was subsequently given the option of resigning or being

terminated, and complainant selected termination. Complainant was

terminated for failure to follow direction. The termination letter also

indicated that complainant did not satisfactorily fulfill the requirements

of her position. Complainant subsequently filed the instant complaint.

At the conclusion of the investigation, complainant was provided a

copy of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination.

In her decision, the AJ found that complainant failed to establish a

prima facie case of race discrimination, noting that complainant failed

to identify a similarly situated individual not in her protected class,

who was treated more favorably under similar circumstances. The AJ

addressed complainant's contention that a White individual (C1) requested

a specific day for leave, was denied, and then called in sick on the

date that his leave request had been denied. Complainant alleged that

C1 only received AWOL and was not terminated as she was. The AJ found

that C1 was not a proper comparator, as he had a different supervisor,

and additionally, the circumstances were different in that C1 did not

specifically tell his supervisor that he would not report for work on

the day for which his leave was denied. As to disability, the AJ found

that complainant was a qualified individual with a disability, however,

she failed to establish that she was subjected to disparate treatment or

denial of a reasonable accommodation. The AJ additionally found that the

agency articulated a legitimate, nondiscriminatory reason for its action;

namely, that complainant was put on notice that she could be removed if

she failed to report to work on the two days in question, and complainant

was terminated when she did in fact, fail to report to work. Finally,

the AJ found no evidence that the agency's reason was a pretext for

discrimination. The agency's final order implemented the AJ's decision.

On appeal, complainant contends that although she and C1 reported to

different supervisors, they had the same second-level supervisor (S2),

and S2 is the person who presented complainant with the option to resign

or be terminated. Complainant contends that C1 was treated more favorably

due to his race. The agency requests that we affirm the final order.

As an initial matter we note that, as this is an appeal from a FAD

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). 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. If a case can only be resolved by weighing conflicting

evidence, issuing a decision without a hearing is not appropriate.

In the context of an administrative proceeding, an AJ may properly

consider issuing a decision without a hearing only upon a determination

that the record has been adequately developed for summary disposition.

The allocation of burdens and order of presentation of proof in a

Title VII case alleging disparate treatment discrimination is a three

step procedure: complainant has the initial burden of proving, by a

preponderance of the evidence, a prima facie case of discrimination;

the burden then shifts to the employer to articulate some legitimate,

nondiscriminatory reason for its challenged action; and complainant must

then prove, by a preponderance of the evidence, that the legitimate reason

offered by the employer was not its true reason, but was a pretext for

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Here, we concur with the AJ's finding that C1 is not similarly situated

to complainant due to the differing circumstances involved in the two

incidents, and due to the fact that C1 and complainant reported to

different immediate supervisors. Complainant does not dispute that she

and C1 had different immediate supervisors. It is well established

that in order for comparative evidence relating to other employees

to be considered relevant, all relevant aspects of the employees' work

situation must be identical or nearly identical, i.e., that the employees

report to the same supervisor, perform the same job function, and work

during the same time periods. See Anderson v. Department of Treasury,

EEOC Appeal No. 01A22092 ( March 13, 2003); Stewart v. Department of

Defense, EEOC Appeal No. 01A02890 (June 27, 2001); Jones v. United

States Postal Service, EEOC Appeal No. 01983491 (April 13, 2000).

Accordingly, complainant has failed to establish a prima facie case

of discrimination on the alleged bases. Additionally, the agency has

articulated a legitimate, nondiscriminatory reason for its action;

namely, complainant did not report to work on the two days in question,

and had been forewarned that her failure to report for work could result

in her termination.<1> Complainant has not presented evidence, beyond

her bare assertions, that race or disability-based animus motivated

her termination. As to the contention that complainant was not given

enough training for her job, S1 stated that complainant received more

one-on-one training than any other employee on the team. We find that

complainant has not presented evidence that she was intentionally denied

training because of discriminatory animus.<2>

After a careful review of the record, the Commission finds that the

AJ's decision without a hearing was appropriate, as no genuine dispute

of material fact exists. See Petty v. Department of Defense, EEOC

Appeal No. 01A24206 (July 11, 2003). We find that the AJ's decision

referenced the appropriate regulations, policies, and laws. Further,

construing the evidence to be most favorable to complainant, we conclude

that complainant failed to present evidence that the agency's actions

were motivated by discriminatory animus toward her protected classes.

Therefore, we AFFIRM the agency's final order.

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:

March 16, 2005

______________________________ __________________

Carlton M. Hadden, Director Date

Office of Federal Operations

1 Complainant's supervisor noted that although the termination letter

stated that complainant failed to perform her duties satisfactorily, she

was terminated solely for failure to follow instructions. Additionally,

S1 stated that it was mere coincidence that complainant received her

yearly evaluation indicating poor performance just after she received

her termination letter.

2 We find that complainant has not shown that her request for more

training constituted a request for a reasonable accommodation within

the meaning of the Rehabilitation Act.