Debra A. Centers, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 21, 2010
0120092950 (E.E.O.C. Oct. 21, 2010)

0120092950

10-21-2010

Debra A. Centers, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.




Debra A. Centers,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120092950

Agency No. FSA-2005-00032

DECISION

On June 30, 2009, Complainant filed an appeal from the Agency’s May

29, 2009 final decision 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 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 pursuant to 29 C.F.R. § 1614.405(a).

BACKGROUND

During the period at issue, Complainant worked as a Program Technician,

CO-7, in the Farm Service Agency (FSA) office located in London, Kentucky.

On September 1, 2004, Complainant contacted an EEO Counselor claiming

that the Agency discriminated against her on the bases of sex (female),

disability (physical), and in reprisal for prior protected activity.

Informal efforts to resolve Complainant’s concerns were unsuccessful.

On December 21, 2004, Complainant filed the instant formal complaint.

Therein, Complainant claimed that the agency discriminated against her

on the above referenced bases, when:

1. Complainant was assigned additional duties without adequate training,

beginning August 17, 2004;

2. Complainant received a “Results Not Achieved” rating on her

performance appraisal of November 12, 2004;

3. Complainant was placed on leave restrictions on November 12, 2004,

resulting in her denial of maxi-flex schedule;

4. Complainant was placed on an Opportunity to Improve Plan on November

12, 2004; and

5. Complainant’s requests for advance sick/annual leave or other paid

leave were disapproved on July 20 and 21-23; August 10-13, 16, and 24-27;

September 8-10 and 29; and October 14 and 18, 2004.

After the investigation, Complainant was provided with a copy of the

report of investigation and notice of her right to request a hearing

before an EEOC AJ. The record does not contain any documentation

reflecting that Complainant responded to this request. Therefore,

the Agency issued its final decision on May 29, 2009, finding no

discrimination.

In its final decision, the Agency found that Complainant did not establish

a prima facie case of discrimination on the bases of sex, disability

and reprisal. The Agency found that even assuming that Complainant

established a prima facie case of discrimination, Complainant did not

rebut the Agency’s articulated legitimate, non-discriminatory reason

for its actions.

Regarding being assigned additional duties, the Agency found that when

a Program Technician retired in March 2004, Supervisor 1 reassigned

the retired employee’s tobacco program duties proportionally between

Complainant and the other Program Technicians. Supervisor 1 stated that

Complainant was not given more duties or less training than the other

Program Technicians. Complainant’s co-workers also stated that they

shared the same amount of workload than Complainant.

Regarding Complainant’s “Results not Achieved” rating, Supervisor

1 stated that Complainant’s poor work performance justified

Complainant’s rating.

Regarding the leave restriction, Supervisor 1 stated that Complainant

was placed on a leave restriction because she abused her leave and her

maxi-flex schedule. Supervisor 1 noted that when Complainant was placed

on leave restriction, she had a balance of zero hour sick leave and

zero hour annual leave.

Regarding Complainant being placed on an Opportunity to Improve Plan

(OTI), Supervisor 1 asserted that Complainant was placed in the

OTI because Complainant’s performance did not improved despite

management’s efforts to help her improve her performance.

Regarding the denial of leave, Supervisor 1 indicated that he denied leave

to Complainant because she had used all of her annual leave and family

sick leave. The Supervisor also stated that he denied her some advance

leave because she was using her leave excessively. Supervisor 1 further

stated that he applied the Agency’s time and attendance policies and

consulted with the Agency’s State Office and District Director before

making a determination regarding Complainant’s leave requests.

CONTENTIONS ON APPEAL

On appeal, Complainant cites prior findings by an EEOC AJ. Specifically,

Complainant claims that the AJ “entered a judgment which stated

the evidence was clear that [a named Agency official] was aware of my

complaint prior to issuing a Notice of Separation” in February 2005 1

Complainant also cited a decision of the Kentucky Office of Unemployment

Insurance, which determined that she was not discharged for misconduct

but for failure to perform her work to the employers satisfaction.

In relation to the instant appeal, Complainant notes that her former

co-workers’ testimony was tainted because one co-worker is a relative

of her former supervisor and the other co-worker fears reprisal.

Complainant also noted that contrary to Supervisor 1 assertions, he was

found to have misappropriated certain funds. Complainant also contends

that Supervisor 1 and her coworkers were aware of her disability.

ANALYSIS AND FINDINGS

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 a 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).

Assuming arguendo, that Complainant has established a prima facie case

of race, sex, and reprisal discrimination, we determine that the Agency

articulated legitimate, non-discriminatory reasons for its actions.2 Here

the Agency determined that Complainant was given the same training and

workload as other Program Technicians. Management officials also stated

that Complainant was issued a low performance appraisal and an opportunity

to improve plan based on Complainant's poor work performance. Record

evidence supports management’s testimony regarding Complainant’s

performance issues. The record also contains evidence regarding

Complainant’s pattern of tardiness and excessive leave that led to

Complainant being issue a leave restriction and disapproval of leave.

The Commission determines that the agency articulated legitimate,

nondiscriminatory reasons for its actions, which complainant failed to

show were pretext for discrimination. We note, Complainant’s appellate

arguments. Nevertheless, we cannot discern from the present record how

the finding of no discrimination in a separate formal complaint relating

to Complainant’s termination had an effect on the matters that are the

subject of the instant case. Moreover, the unemployment compensation

determination addressed by Complainant relates to state proceedings,

and to a separate issue that is irrelevant to employment discrimination:

whether Complainant is eligible for unemployment compensation benefits

due to engaging in work-related misconduct.

Based on a thorough review of the record and the contentions on appeal,

we AFFIRM the agency's decision finding no discrimination.

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 21, 2010

__________________

Date

1 Complainant filed a separate formal complaint regarding her

separation from Agency employment on March 4, 2005. On May 25, 2006,

an Administrative Judge (AJ) issued a decision without a hearing, finding

no discrimination. The Agency issued a decision fully implementing

the AJ’s decision. On appeal, the Commission affirmed the Agency’s

decision finding no discrimination. Centers v. Department of Agriculture,

EEOC Hearing No. 240-2006-00003X; EEOC Appeal No. 0120064330 (January

31, 2007).

2 The Commission presumes for purposes of analysis only and without so

finding, that Complainant is an individual with a disability.

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0120092950

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092950