Kermit Tilford, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, (U.S. Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity CommissionMay 14, 2007
0120071252 (E.E.O.C. May. 14, 2007)

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

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0120071252

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120071252

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