0120102298-Paris
09-03-2010
Florence Paris, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration Agency.
Florence Paris,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration
Agency.
Appeal No. 0120102298
Hearing No. 420-2009-00236X
Agency No. ATL-09-0132-SSA
DECISION
On May 11, 2010, Complainant filed an appeal from the Agency's April 19, 2010, final decision concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to discrimination on the basis of race when she was terminated from her position during the probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Teleservice Representative Trainee (Contact Representative), GS-7, at the Agency's Florida Teleservice Center, in Fort Lauderdale, Florida. Complainant was hired effective March 31, 2008, under the provisions of the Federal Career Intern Program (FCIP). After successfully completing the educational component of the program, she was assigned various mentors to help her learn the on-the-job aspects of the Teleservice Representative position. Complainant was also required to meet with her supervisor on a weekly basis to review her progress. Complainant's supervisors and mentors determined that Complainant was not progressing as had been expected in the areas that were necessary to successfully perform the position.
On November 26, 2008, Complainant received a Notice of Termination. She was informed that she was being terminated effective close of business December 5, 2008, for failure to demonstrate the ability to successfully perform the duties of the position for which she had been hired. The Notice also listed the steps that had been taken to help her perform the duties accurately and independently. In response, Complainant asserted that her mentors did not provide her the feedback and guidance necessary for her to be successful. Further, she maintained that her various mentors gave her contradictory information, were condescending (a White mentor), and were mean spirited (a Black mentor). Complainant also asserted that she was not able to provide feedback on the mentoring process to her supervisor.
Complainant maintained that three other Contact Representatives in the program with similar performance issues (two Black and one Hispanic) were allowed to continue working with a mentor instead of being terminated. Complainant indicated that she was able to respond to approximately 85 percent of her calls without assistance, so she should have been given the opportunity to work independently; and she should have been retrained in specific areas rather than terminated. Complainant maintained that her race was a factor in her termination because the culture of the environment was very racist, in that the Black trainees in the class were not scrutinized and terminated. She also noted that all of the supervisors were Black. Therefore, on March 10, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (White) when she was terminated from her position.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but her request was dismissed by the AJ for failure to prosecute her complaint after she failed to respond to a Show Cause Order.1 The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to establish that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit a brief on appeal. The Agency however, requested that the Commission affirm its finding of no discrimination because Complainant has not shown that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination.
STANDARD OF REVIEW
As this is an appeal from a decision 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Generally, claims of disparate treatment are examined under the tripartite 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 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Once complainant has established a prima facie case, the burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden reverts back to the complainant to demonstrate by a preponderance of the evidence that the agency's reason(s) for its action was a pretext for discrimination. At all times, complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
In the instant case, the Commission finds that Complainant has not demonstrated that she was subjected to discriminatory animus with regard to the Agency's decision to terminate her from her position during her probationary period. Specifically, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination based on her race, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The Agency explained that Complainant was terminated because she failed to progress as expected and would not be able to perform her duties independently in the near future. The Agency also showed that prior to her termination, Complainant was provided with training, several different mentors, and daily and weekly feedback from her mentors and management. We note that in her complaint, Complainant asserts that she was unable to speak frankly with her supervisor regarding her opinion of the effectiveness of the mentor's assistance. We find, however, that Complainant met privately with her supervisor to go over her progress; an opportunity to discuss any concerns was available at that time. Complainant also maintains that there were three other trainees with similar performance issues who were not terminated. In response, management explained that while these trainees did have problems in certain areas and were progressing slower than expected, unlike complainant they were nonetheless progressing and are now fully independent.
Further, the record shows that there were 20 trainee Teleservice Representatives during the time in question. Nine were Black, five were White, four were Hispanic and the race of two trainees was unknown. Three of these students - one Black, one Hispanic and Complainant - were terminated from employment. As such, the Commission finds that Complainant has not shown that the Agency's articulated legitimate, reasons for terminating her from the position more likely than not were pretext for unlawful discrimination.
CONCLUSION
Based on a thorough review of the record and for the foregoing reasons, we AFFIRM the Agency's finding of 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
September 3, 2010
Date
1 Complainant does not contest the dismissal of her hearing request.
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0120102298
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120102298