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.