0120092423
02-03-2010
Rasika N. Tripathy, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Rasika N. Tripathy,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120092423
Agency No. FSIS-2007-00450
Hearing No. 570-2007-00878X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 3, 2009 final order concerning an equal
employment opportunity (EEO) complaint claiming 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.
Complainant alleged that the agency discriminated against him on the
bases of race (Asian), national origin (Indian), sex (male), religion
(Hindu), color (brown), age (over 40), and in reprisal for prior protected
activity when:
1. in February 2007, he was denied the opportunity to rotate into an
Acting Director position;
2. on February 22, 2007, he was denied selection to the Senior Executive
Service (SES) Candidate Development Program;
3. on March 1, 2007, his mid-year performance was rated less than what
his performance supported;
4. on March 13, 2007, the Director's position in the Scientific and
Technical Support Staff was filled without competition;
5. he was assigned the least desirable work in his section;
6. on March 8, 2007, he was issued a Letter of Instruction; and
7. he was threatened by his supervisor based upon information divulged
in a deposition of [named employee] held on March 20, 2008, regarding
security breaches between [former Staff Scientist] and [complainant's
immediate supervisor].1
On November 18, 2008, a hearing was held before an EEOC Administrative
Judge (AJ). After considering the testimony of the witnesses, the AJ
rendered two conclusions. First, the AJ granted the agency's motion
for directed verdict "also known as, for our purposes, a FRCP Rule 52(c)
judgment, which I entered on November 19 [2008], as to claims 1, 2 and 4."
Second, the AJ found that in regard to claims 3, 5, 6 and 7, based on the
evidence of record, complainant has not established by a preponderance of
the evidence that he was discriminated against or subjected to a hostile
work environment because of prior protected activity. Moreover, the AJ
found that management witnesses articulated legitimate, nondiscriminatory
reasons for the actions taken which complainant failed to establish by
a preponderance of the evidence were pretextual.
Regarding claim 1, the AJ noted in her affidavit, complainant's immediate
supervisor (S1) stated that on or about the period that the previous
Director retired, S1 was detailed in the position as the Acting Director.
S1 further stated "I served as the Acting Director for an extended
period of time before being named as the Director. [Complainant] has a
schedule that allows him to be off of working from home on Fridays, so
if I am out on Fridays, it is not workable for him to act on that day.
During my absences, I have had all GS-14s, including [complainant],
fill in at for one week, and one person acted in my place for an extra
week after everyone had rotated through. I do not have one person who I
always have act in my absence, nor is [complainant] excluded from acting
in my absence."
Further, S1 stated that when she was detailed in the position as the
Acting Director, complainant "was not happy about my detail. According to
what he told me when I became Acting Director, he thought as the most
senior employee he would have been named to the job. He believes I took
a job that should be his. The decision regarding the position, however,
was not mine."
The Deputy Assistant Administrator (D1), also complainant's second
level supervisor, stated that since S1 had been the Acting Director,
"she has been out at times for training and she has assigned all of the
GS-14 staff in the unit, including [complainant] to fill in as the Acting
Director in her absence."
Regarding claim 2, one of the three panelists (P1) for the Senior
Executive Service Candidate Development Program, stated that the panel
received twelve applications for the subject program. P1 stated that when
she reviewed the applications, she was sought someone "who demonstrated
strategic thinking. [He or she] should be able to explain how [actions
are] related to the Agency goals. I was looking for communication
skills, and looking for staff with management experience." P1 stated
that complainant's application was one of the three weakest applications
from the group recommended.
P1 stated that complainant's application included a page on his career
goals and "his explanation of his career goals, however, [it] wasn't very
clear. It seemed he used the right terminology, but his explanation of
his career goals didn't hang together or make sense. In his application,
[complainant] listed his career goals as education and raising awareness,
but I didn't see much of an indication of leadership in the section.
It didn't seem from his application that he understood how you provide
leadership to organizations and programs."
Further, P1 stated that all candidates had to provide examples
in five areas: Influencing and Negotiating, Technical Credibility,
Creativity and Innovation, Developing Others and Technology Management.
P1 stated that she found complainant's examples "lacked depth and were
not documented well. I thought his communication skills were lacking.
The characteristics that set the applications of those selected from
other applications was that the applications selected were well prepared,
they were clear, and the examples provided were detailed and demonstrated
strategic thinking and leadership capabilities."
Regarding claim 3, the AJ noted in his testimony, complainant acknowledged
he did not receive a rating on March 1, 2007. Complainant stated that
it was really "a performance review where the supervisor tells you how
you are doing." Complainant stated that he felt that S1 discriminated
against him "because I had a better review in prior years when I came
here. That was the first review I received from her."
S1 testified that in March 2007, she met with complainant to discuss
his progress review. S1 stated "there is no rating that is given at
this stage of the employee's evaluation, it is a progress review."
S1 further stated that she and complainant discussed "how he was doing
and how he could improve or do better. I do remember [complainant]
commenting that he would like to receive a superior rating at the end of
the rating period, which would have been about six months from that date,
and I remember telling him that he would have to improve the quality
and quantity of his work to get that rating, but that I could work with
him through the next six months to try and get it there." S1 stated she
and complainant agreed to set up weekly meetings to achieve that goal.
S1 stated, however, that the weekly meeting did not last very long
because of their busy schedules.
Regarding claim 4, the Assistant Administrator (AA) stated that the
Director's position in the Scientific and Technical Support Staff
was filled without competitive applications because "it was not a
merit promotion selection." AA stated that at the time the subject
position opened up, S1 was working "in the Division under the IPA
[Intergovernmental Personnel Agreement] and we were able to extend her
IPA and detail her into the Director's position under the IPA agreement.
She was considered well qualified for the position." AA stated that she
and DD recommended S1 fill the subject position. AA stated that their
recommendation was forwarded to the Secretary level of the USDA in which
it was approved. AA further stated "at the time of the vacancy we were
not in a position to hire a permanent person for the position because of
a hiring freeze at the time. We did have [S1] working in the unit at the
time and we had the opportunity to place her in the Director's position
under the IPA. There is no requirement to competitively announce the
position when a person is detailed into a position under the policy
governing IPA's."
The Director of the Demonstration Project (Director) stated "there
is no requirement to fill the position with competitive applicants.
Under the IPA regulations, when a person is detailed into a position,
there is no requirement to fill or consider competitive applications
first. Under Title 5, management has several options for filling a
position. They can fill a job with a competitive applicant or through
non-competitive methods such as a detail, a reassignment of an employee
at the same grade or through an IPA. Therefore, there is no requirement
to fill any job competitively or consider a competitive candidate first
or in place of a non-competitive candidate."
Regarding claim 5, the AJ noted under cross-examination, complainant
admitted on many occasions that he was receiving desirable or very
desirable work in addition to what he considered less desirable work.
S1 testified that she used a matrix system in delegating assignments to
employees. S1 stated that the purpose of the matrix "was to make sure
that we had all projects written down as to what the project was, a brief
description on the project, the person in charge of it, and the milestones
and deadlines for those milestones, and it was used to track projects
in the staff." S1 stated that all assignments on the matrix were
important, and that if the assignments were not important, they would not
be working on them, and they would not be on the matrix. S1 stated that
she tried to match certain jobs with employee's job skills. S1 stated
that complainant never talked to her about having less desirable work.
S1 stated that during the relevant period, complainant "didn't necessarily
like everything he did, but not overall less desirable."
D1 stated that all work assignments are "all significant, but the
priorities might be different." D1 further stated that the reason
management tracks work assignments "because they're all significant
critical information that we should be tracking, significant projects
that we should be tracking."
Regarding claim 6, the record reflects that complainant asked an
Administrative Support Specialist/Personnel and Document Security
Specialist (Specialist) who was her supervisor and what her rating was.
The record further reflects that the Specialist was upset with complainant
for asking her these questions because she felt that it was none of his
business and inappropriate for him to ask her.
D1 stated that he was the deciding official to issue complainant a
Letter of Instruction dated March 8, 2007. Specifically, D1 stated that
complainant asked the Specialist "about who signed her ratings or details
to that effect. And [Specialist] indicated she checked with the LERD
[Labor Employees Relations Division], and this is inappropriate, and I
went ahead and checked with the LERD myself before I issued the letter
of instruction." D1 stated that the LERD confirmed that complainant's
questions were inappropriate. D1 stated that the purpose of issuing
complainant the subject letter was to cease these kinds of inquiries
because "it's causing some not very good feelings in the employees, so."
S3 stated that the Specialist was upset that complainant had asked
her several questions "that she considered private information,
and she checked out - - she actually called LERD to say, 'Can this
person be asking me this type of information?' And they said, 'No.'
And then [D1] wrote a letter of instruction, saying that these kinds of
questions should not be asked of other employee." S3 stated that after
complainant received the March 8, 2007 Letter of Instruction, the former
Staff Scientist informed her that complainant had asked her about her
performance rating. S3 stated that she learned that a named employee
"was also asked, and I told [complainant] that he really needs not to
be asking these questions of individuals."
Regarding claim 7, the Executive Associate (EA), also complainant's
supervisor, stated that in March 2008, she was notified that there
was a potential breach in handling secure documents. Specifically, EA
stated that a named employee had claimed that there had been a breach
of handling of security that the former Staff Scientist had handed a
document to [complainant's supervisor]. EA further stated that she made
a determination "to let all parties know who might be involved in this
investigation, that an investigation was going to go on so that they
would be aware of it. Additionally, I need - - I wanted to and needed
to let my staff know the proper way of handling any type of a breach."
EA stated that after the staff meeting, she asked complainant to stay
so she could discuss several issues with him.
Further, EA stated she and complainant had a discussion about the
investigation and "that he might be asked some questions about it; that
the investigation involved [a named former Staff Scientist] and [S1]
and the potential breach of security documents." EA stated that she
reminded complainant that if he was aware of a potential security breach,
"it's our duty to report it." EA stated "there was another element that
was involved in that meeting, but that had to do with something that had
come up in staff meeting when we were discussing workload and projects,
and [complainant] had mentioned that he was going to be requesting an
extended leave, and I wanted to know more information about the extended
leave so that I could plan workload." EA stated that later in the day,
complainant sent her two emails. EA stated that in the first email,
complainant "asked me to not harass him. The second was a follow up
with the same, not to harass him."
As an initial matter, the Commission notes that one witness testified
by telephone at the hearing held by the AJ. The Commission has held
that testimony may not be taken by telephone in the absence of exigent
circumstances, unless at the joint request of the parties and provided
that specified conditions have been met. See Louthen v. United States
Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).2 The
Commission notes that there is no indication in the record that either
party objected to the telephone testimony in this case. Moreover, even
if it is assumed that the AJ abused his discretion by taking testimony
by telephone, the Commission finds that his action would have constituted
harmless error.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
After thorough review of the record, we conclude that the AJ's findings
in this case, including his determination concerning the credibility
of agency witnesses, are supported by substantial evidence. The record
supports the AJ's conclusion that complainant did not provide sufficient
evidence to support an inference of unlawful discrimination. Moreover,
we concur with the AJ's finding that complainant failed to rebut the
agency's explanations for its actions with credible evidence. We discern
no reason to disturb the AJ's ultimate conclusion, that complainant
failed to prove, by a preponderance of the evidence, that the agency's
actions resulted from discriminatory animus.
Therefore, after a review of the record in its entirety, it is the
decision of the Equal Employment Opportunity Commission to AFFIRM the
agency's final order adopting the Administrative Judge's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
February 3, 2010
__________________
Date
1 The record reflects that claim 7 was later amended to the instant
formal complaint.
2 In Louthen, the Commission has promulgated its policy regarding the
taking of telephone testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint
and voluntary request by the parties with their informed consent.
Further, where telephone testimony is improperly taken, the Commission
will scrutinize the evidence of record to determine whether the error
was harmless, as is found in this case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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