0120113584
08-15-2013
Kimberly Y. Barnett, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Kimberly Y. Barnett,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120113584
Agency No. IRS110017F
DECISION
Complainant filed an appeal from the Agency's June 23, 2011, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative at the Agency's Wage and Investment Service Center facility in Memphis, Tennessee.
On December 22, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and color (dark skinned) when she was terminated from her position on September 28, 2010, on the grounds of poor performance and attendance problems. Complainant was a probationary employee.
At the conclusion of the investigation into the complaint, 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 final decision 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 instant appeal followed. In her appeal, Complainant asserts she had leave to cover her absences and that she should not have been a probationary employee. In added she states she was retaliated against because she went to the union regarding a math error class and management was upset about that. Complainant does not address her performance issues.
ANALYSIS AND FINDINGS
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").
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review, we find that even if Complainant can establish a prima facie case on any basis alleged, the responsible Agency management officials articulated legitimate, non-discriminatory reasons for her termination. Complainant's immediate supervisor (Caucasian) stated that Complainant was counseled monthly during her probationary period based on leave audits and work performance reviews. The supervisor stated that these monthly reviews showed that Complainant was using an excessive amount of unscheduled leave, including several instances of being absent without official leave (AWOL), and was continually failing to do complete and correct research on the accounts she was responsible for, including providing taxpayers with incorrect or incomplete responses to tax questions. The supervisor further claims that despite these monthly counseling sessions, Complainant did not improve. Therefore, she recommended her removal prior to the end of her probationary period, and her manager concurred.
The record contains copies of several memorandums of counseling addressed to Complainant from her supervisor regarding performance issues. These memorandums dealt with customer accuracy of cases reviewed and the amount of assistance requested. Complainant was restricted from working on certain cases until improvement was shown.
The Department Manager (African American, brown) stated that she was the person who ultimately made the decision to terminate Complainant during her probationary period on the recommendation of her supervisor. She said that Complainant's failure to improve her attendance despite counseling was the primary reason for her termination, as well as continuing work performance deficiencies.
Complainant failed to prove, by a preponderance of the evidence, that the Agency's proffered reasons for terminating her employment were a pretext for discrimination. The record contains the counseling memorandums that Complainant was given regarding her performance and attendance. While Complainant states she had leave to cover her absences, she does not deny the AWOL charges or the amounts of leave used. Complainant named other employees that she alleged were treated differently. However, the evidence of record does not support a finding that these comparators used as much leave as Complainant. Moreover, the evidence shows that when counseled on their attendance and work performance, the alleged comparators improved their performance unlike Complainant. The record also shows that one employee accepted a new position before a determination could be made on her suitability for continued employment. Finally, the Agency asserted without rebuttal from Complainant that numerous other employees had been terminated or had opted to resign during their probationary period for attendance and performance issues.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding that Complainant was not discriminated against as alleged.
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 15, 2013
__________________
Date
2
0120113584
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113584