0120100481
08-10-2012
Geneva Coleman, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Geneva Coleman,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120100481
Hearing No. 531-2008-00212
Agency No. 06000116
DECISION
On November 9, 2009, Complainant filed an appeal from the Agency's October 13, 2009 final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Services Specialist in the Applicant Services Department at the Federal Emergency Management Agency (FEMA), Maryland National Processing Service Center (MNPSC) located in Hyattsville, Maryland. On October 6, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), age (47), and in reprisal for prior protected EEO when: (1) on August 1, 2006, she received a rating of Less Than Expected (LTE) on her third quarter performance appraisal; (2) on August 8, 2006, she was removed from a training class; and (3) on or about October 11, 2006, she was terminated.
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 timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency's July 18, 2008, motion for a decision without a hearing and issued a decision on September 4, 2009. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
UNDISPUTED FACTS
The Supervisory Program Specialist at MNPSC (ESL) was Complainant's second-line supervisor from October 2004 until August 2006.1 In March 2006, Complainant filed an informal EEO complaint because ESL listed her as "Absent without Official Leave" (AWOL) when she called in sick on a day she was scheduled to work in February 2006. After the EEO counselor spoke to ESL, Complainant was allowed to submit a doctor's slip justifying her sick leave. On April 12, 2006, Complainant withdrew her informal complaint because the issue was resolved.
On August 1, 2006, Complainant's first-line supervisor at the time (S1) gave her a "Less Than Expected" (LTE) end-of-quarter rating due to her low productivity during the third quarter, ending June 1, 2006. The threshold for an LTE rating was less than 50% production for more than 40 hours of casework time. Complainant's production rate was at 41% for the third quarter. ESL reviewed Complainant's performance appraisal and agreed with S1's assessment.
On August 7, 2006, Complainant began attending a week-long training session. During the second day of the training, Complainant had difficulty hearing the speaker and stated very loudly that she could not hear. The training facilitator (T1) asked Complainant to move to the other side of the room. Complainant responded, "What am I supposed to do, sit on top of someone?" T1 then asked to speak to Complainant outside of the classroom because Complainant continued to be disruptive. Complainant told T1 that she would leave the training and return to her office instead. T1 told S1 about the disruption and her decision not to allow Complainant to attend the remainder of the training that week. Management officials supported T1's decision.
On October 4, 2006, Complainant was involved in a physical altercation with another FEMA employee (C1). C1 approached Complainant about a two dollar loan. Both Complainant and C1 walked to the stairwell near their workstation and began arguing. Other co-workers heard Complainant and C1 yelling at each other. Another co-worker (C2) witnessed the altercation between the Complainant and C1. C2 stated that Complainant was cursing at C1, who was backing away from Complainant, and that he saw Complainant kick C1. Complainant admitted that she "defended herself after [C1 allegedly] attempted to punch her and grazed her nose.
Complainant's third-line supervisor (S3) heard the confrontation and attempted to break up the fight. When S3 entered the corridor where the two women were standing, she saw an empty shoe on the floor. She spoke to Complainant and C2 separately, and C2 stated that Complainant kicked her. Complainant stated that she kicked C2 in self-defense. S3 conducted an investigation and collected written statements from Complainant, C2, and several witnesses. The statements indicated that Complainant was the aggressor based on her profane language and physical assault on C2 (i.e., the act of kicking C2). S3 and another management official also consulted with the Employee Relations staff during their investigation. On October 11, 2006, Complainant was terminated for conduct unbecoming a Federal employee based upon the statements that management officials received and Complainant's admission that she kicked C2. S3 prepared the termination notice. On October 17, 2006, C2 was suspended from work for three days without pay due to her involvement in the altercation with Complainant and because she previously received a written warning on May 10, 2006 for inappropriate behavior and misuse of government time and equipment.
CONTENTIONS ON APPEAL
Complainant claims on appeal that she never received the Agency's motion for summary judgment. Complainant also generally restates arguments previously made which were addressed by the AJ in his decision.
ANALYSIS AND FINDINGS
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.
Claim 1 - LTE Performance Appraisal
With respect to Claim 1, the AJ concluded that Complainant failed to establish a prima facie case of discrimination or reprisal because the evaluation was only a temporary marker on the current state of Complainant's performance. However, assuming Complainant could establish a prima facie case of discrimination, the AJ concluded that Complainant failed to present sufficient evidence to support the assertion that the Agency's articulate a legitimate, nondiscriminatory reason for giving Complainant the LTE score was pretext for discriminatory or retaliatory animus. Specifically, the AJ noted that Complainant knew or should have known the amount of production expected for 40 hours of casework time for the quarter through memoranda documentation and numerous pre-shift staff meeting discussions led by supervisors. The AJ also noted that the evidence shows that production scores are applicable to all employees including Complainant. Moreover, the AJ noted that the evidence establishes that the Agency reasonably relied on the data collected to assign the rating of LTE to Complainant's performance for the third quarter. In addition, the AJ noted that Complainant attempted to build a casual connection between the amount of days she missed during the third quarter due to illness and the performance evaluation scoring. However, the AJ concluded that the record shows that the performance rating measures are only based on the days Complainant actually worked. The record shows that adjustments were made for days that Complainant missed work. Complainant failed to present evidence to dispute this assertion. Accordingly, the AJ concluded that Complainant failed to establish that the legitimate, nondiscriminatory reasons articulated by the Agency were a pretext for the Agency's actions.
Claim 2 - Removal from Training
With respect to Claim 2, the AJ concluded that Complainant failed to establish a prima facie case of discrimination or reprisal. However, assuming that Complainant could establish a prima facie case of discrimination, she, nevertheless failed to present evidence in support of a finding that the Agency's legitimate, non-discriminatory explanation was a pretext for discriminatory animus. Specifically, the AJ noted that the evidence presented shows that Complainant engaged in disruptive behavior during the training class. The AJ also noted that Complainant failed to present evidence that any similarly situated comparison employee who was outside her protected classes was treated more favorably. Accordingly, the AJ concluded that Complainant failed to present sufficient evidence of discrimination or reprisal to preclude summary judgment.
Claim 3 - Termination
With respect to Claim 3, the AJ concluded that Complainant failed to present sufficient evidence to establish that the Agency's legitimate, non-discriminatory reason for the termination was a pretext or that the Agency was motivated by discriminatory or retaliatory animus. Specifically, the AJ noted that the evidence shows that the Agency terminated Complainant because an investigation produced witnesses and evidence that she engaged in physical violence against C2 and was the aggressor in the altercation. In addition, the AJ noted that the Agency explained that C2 received a lesser punishment because there was no evidence to conclude that C2 physically assaulted Complainant. Moreover, the AJ concluded that the only person with knowledge of Complainant's prior EEO activity was ESL who had left a month prior to the assault incident and was working in Louisiana. In addition the AJ noted that the record is devoid of evidence to demonstrate that S3, the investigator for the assault, had knowledge of Complainant's prior EEO activity or demonstrated any type of animosity toward Complainant. Accordingly, the AJ concluded that Complainant failed to present sufficient evidence to establish pretext for Agency's action of termination based on discriminatory or retaliatory animus.
CONCLUSION
Based upon a thorough review of the record and the contentions on appeal,2 we find that the record supports the AJ's analysis and conclusions. We note that the record is devoid of evidence of pretext or unlawful animus on the part of any management official.
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
August 10, 2012
__________________
Date
1 In September 2006, ESL left the MNPSC to work in Baton Rouge, Louisiana as an Individual Assistance Officer.
2 The record contains sufficient evidence to conclude that Complainant received the Agency's motion for summary judgment. Such evidence includes a "certificate of service" signed by the Agency's attorney certifying that the motion for summary judgment was mailed to Complainant's address of record on July 18, 2008.
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01-2010-0481
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013