0120093624
04-19-2011
Judy K. Herbert, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Judy K. Herbert,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120093624
Agency No. OS-09-0033
DECISION
On September 2, 2009, Complainant filed an appeal from the Agency's August
4, 2009, 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 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 (FAD) finding no
discrimination.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was discriminated
against on the bases of race and age when she was terminated from her
position during her probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Records Management Specialist, GS-13 at the Agency's Office of the
Solicitor facility in Washington, D.C. She was employed by the Agency
from July 20 to October 17, 2008. Complainant indicated that it was her
supervisor who encouraged her to apply for the position and hired her.
The supervisor knew Complainant because Complainant worked on Freedom Of
Information Act (FOIA) appeals and they often interacted with each other
when there was an appeal to address. Complainant maintains that she began
experiencing problems with her supervisor between the end of August and
the beginning of September 2008, when the supervisor started commenting
that Complainant's work assignments needed correction. Complainant stated
that her relationship with her supervisor got to the point where they
only communicated via email unless she had a question that required
her to speak directly to the supervisor. Complainant states she never
received any performance standards, was not given an interim performance
review, and she did not receive any counseling regarding her performance.
After several meetings wherein they discussed Complainant's disagreement
with the direction that she received from her supervisor and the fact
that Complainant reported to work late a few days a week, Complainant
was terminated from her position.
On January 26, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (Caucasian) and age
(43) when, on October 17, 2008, 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). In accordance
with Complainant's request, the Agency issued a FAD pursuant to 29
C.F.R. � 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.
The Agency found that it had articulated legitimate nondiscriminatory
reasons for its actions, and Complainant had failed to show that the
reasons were pretext for discrimination.
Specifically, the Agency maintained that Complainant was terminated from
her position during her probationary period because of her disrespectful
attitude toward her supervisor (white, age 38). The supervisor explained
that she met with Complainant on September 9, and 26, and October 8,
2008, to discuss her failure to follow instructions; her habit of
reporting late for work; and her disrespectful demeanor towards her.
The supervisor indicated that the tone of Complainant's e-mail messages
were unsatisfactory. For example, the supervisor stated that in one of
Complainant's e-mail messages, she used the words, "rather ridiculous"
to describe the supervisor's instructions. The second line supervisor
(S-2) (white, age 63) indicated that approximately three or four weeks
before Complainant's employment was terminated, he met with Complainant
and her supervisor to discuss Complainant's failure to follow instructions
and issues with her performance. He maintained that Complainant's race
and age were not considered with regard to her termination.
Additionally, several coworkers testified that Complainant and the
supervisor did not get along. One employee indicated that she thought
that the supervisor felt that Complainant was after her job but she, like
the other coworker, did not believe Complainant's race and/or age were
at issue. The coworkers indicated that the supervisor had a very harsh
supervisory demeanor with everyone and could be described as intense,
controlling, and hostile but maintained that she treated everyone
the same way. The Agency found that Complainant failed to show that
discriminatory animus was involved in this case. Moreover, the Agency
determined that Complainant failed to provide any evidence that showed
that the Agency's articulated reasons were pretext for discrimination.
Accordingly, the Agency issued a FAD finding no discrimination.
CONTENTIONS ON APPEAL
Complainant did not submit a brief on appeal. The Agency's brief requests
that its finding of no discrimination be affirmed because Complainant
has not shown that the Agency's articulated 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
In the instant case, the Commission agrees that Complainant failed
to demonstrate that she was discriminated against as she alleged.
The Commission finds that even if we assume arguendo that Complainant
established a prima facie case of discrimination based on race and age,
the Agency has articulated legitimate, nondiscriminatory reasons for
its actions, namely, that Complainant was terminated from her employment
during her probationary period because of her disrespectful attitude and
behavior towards her supervisor. The Commission finds that no evidence
has been presented by Complainant that indicates that the Agency's
reasons were pretext for discrimination. In fact, even if we consider
the statement made by a coworker that it was believed that Complainant
and the supervisor did not get along because the supervisor thought
Complainant wanted the supervisor's job, the record still reveals that
the supervisor did not treat any employee more favorably than any other
and treated all of them in a harsh manner. Additionally, the evidence
shows that the supervisor was the one who provided Complainant with the
job announcement and encouraged her to apply for the position at issue,
and with the knowledge of Complainant's race and age hired Complainant
for the position. The Commission agrees with the Agency that these facts
are not consistent with a finding that the supervisor's behavior towards
Complainant was based on her race and/or age. The Commission finds that
Complainant failed to show that the Agency's reasons were pretext for
discrimination or that discriminatory animus was involved in this case.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the FAD.
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
___4/19/11_______________
Date
2
0120093624
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093624