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