0120120016
08-13-2013
Pamela D. Bohannon-Bey, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Pamela D. Bohannon-Bey,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120120016
Agency No. IRS100557F
DECISION
On September 21, 2011, Complainant filed an appeal from the Agency's August 16, 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency's Final Decision (FAD) properly found that Complainant was not subjected to discrimination based on race (African-American) when she was terminated during her probationary period from her position as an Internal Revenue Agent, effective May 28, 2010.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Revenue Agent, RA-0512-05 in the Agency's Small Business/Self Employed Division facility in San Antonio, Texas. On August 3, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African American) as articulated in the statement of "issues presented" above. 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 requested a hearing but the AJ denied the hearing request because Complainant failed to respond to the AJ's Order to Show Cause dated May 18, 2011. The AJ remanded the complaint to the Agency, and 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.
Specifically, the FAD found that while Complainant established a prima facie case discrimination based on race, the Agency articulated a legitimate non-discriminatory reason for her termination, mainly, that she was not performing her job at a satisfactory level. Complainant's second level supervisor (S2) provided documentation supporting the determination that Complainant was not adequately performing her duties. The FAD held that Complainant failed to establish that the Agency's articulated, non-discriminatory reasons for the termination were a pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant did not submit any arguments on appeal. In response to Complainant's appeal, the Agency request that the Commission deny the appeal because Complainant failed to prove that the Agency's articulated reasons for terminating her employment were a 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
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). For Complainant to prevail, she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
We find that Complainant has established a prima facie case of discrimination based on race. Complainant is a member of a protected group by virtue of her race, and she was terminated by the Agency during her probationary period. Complainant alleged that other White and Hispanic employees were retained. The burden now shifts to the Agency to articulate a legitimate, non-discriminatory reason for Complainant's termination.
S2 alleges that Complainant was terminated because of poor performance, as was indicated on many of her case reviews. S2 also stated that Complainant was provided with feedback and guidance on each case that was returned for revision to assist her in developing her ability to more adequately perform the duties of her position. While Complainant was not issued a written reprimand, she was issued a counseling memo in November 2009 about missing deadlines.
The record includes several performance evaluations commenting on the issues with Complainant's case work. In August 2009, a report stated that Complainant was generally managing her inventory effectively, but that she needed to open more cases soon. In November 2009, a report addressed Complainant's failure to submit seven payment authorizations in a timely manner, despite receiving training on the procedures for processing these payments. In February and March 2010, a report contained comments related to poor inventory management, serious concerns about time charges, and some substantive errors. At this time S2 extended Complainant's rating period to give her the opportunity to demonstrate performance at the "Fully Successful" level. Many of Complainant's co-workers who were assigned Complainant's inventory after she was terminated opined that the work was not satisfactorily performed. The other employees commented that many of the "work papers" relating to the cases did not include the necessary information to resolve the issue, or that Complainant's cases required many hours of work to clean up, correct, or "re-perform" from the beginning. The Commission finds that these explanations are adequate, legitimate, non-discriminatory reasons for Complainant's termination. Thus, the burden now shifts back to Complainant to prove that the Agency's reasons are pretext for discrimination.
We find that Complainant was unable to establish that similarly situated employees outside her protected class were treated more favorably than she was, and were retained after failing to improve their performance. The record reflects three other employees hired under the Federal Career Intern Program at the same time as Complainant. Two were African American and one was White. One African American and the White employee were terminated during their probationary period, and the remaining African American employee was retained after improving her performance in the time allotted.
We find that Complainant failed to establish pretext. She failed to present any additional arguments on appeal, and we find that the arguments made during the investigation were inadequate to establish discriminatory animus.1
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons, the Commission finds that Complainant has not established that she was discriminated against as alleged. Accordingly, the Agency's final decision is AFFIRMED.
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
__8/13/13________________
Date
1 The Commission has long held where a Complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Coe v. Department of Homeland Security, EEOC Appeal No. 0120091442 (October 7, 2011); Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).
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0120120016
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120016