0120071252
05-14-2007
Kermit Tilford, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (U.S. Immigration and Customs Enforcement), Agency.
Kermit Tilford,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(U.S. Immigration and Customs Enforcement),
Agency.
Appeal No. 0120071252
Agency No. HS 05-CIS-000878
DECISION
Complainant timely initiated an appeal from the final agency decision
concerning his 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 appeal is accepted pursuant to 29 C.F.R. �
1614.405(a).
On April 5, 2004, complainant was hired as a Center Adjudication Officer
(CAO), GS-1801-5, at the agency's Texas Service Center (TSC) in Dallas,
Texas, subject to a two-year probationary period.
On July 22, 2005, complainant filed the instant formal complaint.
Therein, complainant claimed that he was a victim of unlawful employment
discrimination on the bases of race (African-American), sex (male),
and age (D.O.B. 06/05/34) when:
(1) he was harassed during training when a supervisor made the remark,
"How old are you anyway?;" and
(2) on April 1, 2005, he was notified that his term appointment as a
CAO at the TSC was not being extended beyond May 5, 2005, for alleged
performance deficiencies.
On August 19, 2005, the agency issued a partial dismissal. The agency
accepted claim (2) for investigation. The agency dismissed claim (1)
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
At the conclusion of the investigation of claim (2), complainant was
provided with a copy of the report of investigation and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
In accordance with complainant's request, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant
failed to prove that he was subjected to discrimination as alleged.
In its November 29, 2006 final decision, the agency found no
discrimination concerning claim (2). Without addressing the prima
facie analysis of complainant's disparate treatment claim based on race,
sex and age, the agency found that management articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext for discrimination.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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 Department of the Navy,
EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, non-discriminatory reasons for
its actions. The record contains an affidavit from complainant's
second-line Supervisor (S2). Therein, S2 stated that on April 1, 2005,
complainant was issued a letter notifying him that his term appointment
would not be extended beyond May 5, 2005 due to unacceptable performance.
The record reflects that federal mandates require that the agency
comply with stringent processing deadlines. S2 stated that when she
and complainant's first-level supervisor (S1) reviewed complainant's
performance, they noted complainant "had errors and his production levels
were low." S2 stated that complainant was expected to meet or exceed the
"minimally satisfactory" level; and these requirements were communicated
to complainant during his term appointment by the supervisors of the
Training Division. S2 stated, however, complainant fell within the
"unacceptable" level. With respect to complainant's assertion that
S2 told him that he had until the end of April 2005 to improve his
performance, S2 stated that she was unaware of this statement.
With respect to complainant's assertion that his training was inadequate,
S2 stated that complainant was "properly trained and provided assistance
in an attempt to succeed." S2 stated that complainant "was trained
by our training division, subject matter experts, supervisors, and
co-workers. He was given formal, informal and one-on-one training."
S2 stated that complainant was provided training concerning the
processing of various forms trained in a classroom setting along with
other employees. S2 stated that "additional training was provided
however the complainant was unable to grasp the concepts and continued
to make errors." Furthermore, S2 stated that complainant's race, sex
and age were not factors when he was notified that his term appointment
would not be extended beyond May 5, 2005.
The record further contains an affidavit from the Director. Therein,
the Director stated that on April 1, 2005, she issued complainant a
letter notifying him that his term appointment would not be extended
beyond May 5, 2005 due to unacceptable performance. The Director further
stated that complainant was not able to perform at the required level as
outlined in his Performance Work Plan (PWP). The Director stated that
prior to the issuance of the notification letter, "three verbal counseling
sessions and a letter of counseling were issued on unknown dates by the
Complainant's first or second line supervisor for performance issues."
The Director stated that while a standard training program is provided
to all new employees, including complainant. The Director stated that
complainant "was also provided an additional 964 hours of in-house
training above and beyond the standard new employee training."
Further, the Director stated that according to the Immigration and
Naturalization Employee Handbook, Form M-462, Section 1-2, "the first
year of service of a term employee is a trial period. Note: Every
employee signs a Probationary Form acknowledging that they are aware of
a one-year probationary period." The Director stated that on April 5,
2004, complainant signed his Term Appointment "Employee Statement of
Understanding" and "Trial Period Notification." The Director stated
that Section 1-7 of the Employee Handbook "references Probationary Period
and states that the one-year probationary period is an extension of the
hiring process. This test of actual performance on the job gives the
supervisor an opportunity to observe the employee's demonstrated capacity
for the position. When an agency decides to terminate an employee serving
a probationary or trial period because work performance or conduct has
failed to demonstrate fitness or qualifications for continued employment,
it shall do so by notifying the employee in writing as to the reason(s)
for the separation and the effective date of the action."
The record contains an affidavit from complainant's former Supervisor
(former Supervisor). Therein, the former Supervisor stated that
he supervised complainant from July 1, 2004 through September 30,
2004; and that on October 1, 2004, complainant was transferred to a
named Supervisory Center Adjudications Officer (SCAO). The former
Supervisor further stated that on April 1, 2005, he was notified that
his term appointment would not be extended beyond May 5, 2005 due to
unacceptable performance. The former Supervisor stated that he and SCAO
informed him of his performance issues prior to the notification letter.
Specifically, the former Supervisor stated that complainant was informed
"on several different occasions (2-verbally; 1-written) by myself
and [SCAO] that his performance was not satisfactory. He was given a
letter of Performance Counseling by [SCAO] on this subject on 2/9/2005."
The former Supervisor stated that even though he and SCAO worked with
complainant on a one-to-one basis, he "personally worked with the
Complainant on a one-to-one basis on at least two separate occasions."
With respect to complainant's assertion that SCAO spent more time with
other CAO's than him, the former Supervisor stated "I don't believe this
is true. I think the complainant received more time than other officers."
Furthermore, the former Supervisor stated that he did not discriminate
against complainant based on his race, sex and age.
The record contains an affidavit from the Assistant Center Director
(ACD). Therein, ACD stated that it is standard practice for the
agency to place new employees, including complainant, in the Training
Department for approximately 6-8 weeks. ACD further stated that during
training, he was the new employees' second-line supervisor. ACD stated
that the level of an employee's proficiency "depends on the forms and
the employee's ability to learn." ACD stated that after two weeks of
training, employees receive the I-485 form, which is a complex form;
and that "most employees become proficient on this form." ACD stated that
following training, most employees "are performing at or near the fully
successful rate." ACD stated, however, that it was his "perception is
that the complainant did not grasp things as the other employees did."
ACD stated that he did not believe that complainant's race, sex and age
were factors when he was notified that his term appointment would not be
extended beyond May 5, 2005 because the Director and SCAO "are very fair
and it is likely the Complainant could not meet the production levels."
The record contains a copy of Title 5 - Administrative Personnel,
Chapter 1 - - Office of Personnel Management, Part 315 Career and
Career-Conditional Employment - - Table of Contents, Section 315.804
"Termination of probationers for unsatisfactory performance or conduct."
Therein, Section 315.84 provides that "(a) when an agency decides to
terminate an employee serving a probationary or trial period because
his work performance or conduct during this period fails to demonstrate
his fitness or his qualifications for continued employment, it shall
terminate his services by notifying him in writing as to why he is being
separated and the effective date of the action."
Complainant has not shown that the agency's articulated reasons, as
discussed above, were a pretext for discrimination. Therefore, we find
that the agency properly found no discrimination.
Accordingly, the agency's final decision finding no discrimination
concerning claim (2) is AFFIRMED.
Claim (1)
Complainant claimed that he was subjected to harassment on the bases of
race, sex and age when a supervisor made the remark "How old are you
anyway?" during training. In its August 19, 2005 partial dismissal,
the agency dismissed claim (1) for failure to state a claim finding
that complainant was not aggrieved. The agency further concluded that
the alleged act identified in claim (1) did not rise to the level of
harassment.
After a careful review of the record, we find that claim (1) does not
involve sufficient harm or loss to the conditions, privileges of terms
of complainant's employment to render him aggrieved. Therefore, we
find that the agency properly dismissed claim (1). Moreover, a review
of the record reflects that the matter in question is insufficient to
support a claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Accordingly, the agency's dismissal of claim (1) for failure to state
a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
May 14, 2007
__________________
Date
2
0120071252
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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