0120121387
08-07-2012
Robin Weiss, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Bureau of Land Management), Agency.
Robin Weiss,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.
Appeal No. 0120121387
Agency No. BLM100427
DECISION
On February 7, 2012, Complainant filed an appeal from the Agency's November 28, 2011, final decision (FAD) 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Land Law Assistant at the Agency's Division of Natural Resources, Eastern States facility in Springfield, Virginia.
On September 3, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), religion (Jewish), age (47), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On June 4, 2010 Complainant was terminated from her position during her probationary period; and
2. On an unspecified date Complainant was made to switch cubicles with a student and was given a broken computer.
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). 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. Specifically, the Agency found that the Agency articulated legitimate nondiscriminatory reasons for its action and that Complainant failed to show that such reasons were a pretext for discrimination or reprisal. With regard to the removal, the Agency found that she was removed for performance deficiencies, and with regard to Complainant being moved to another cubicle, the Agency found that this was done to place her closer to her supervisor and other more experienced colleagues.
CONTENTIONS ON APPEAL
Complainant has submitted voluminous1 documents on appeal. To the extent that Complainant is addressing her appeal before this Commission and not the Merit Systems Protection Board (MSPB), Complainant essentially repeats the arguments she made to the Agency. The Agency requests that we affirm the FAD.
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").
The allocation of burdens and order of presentation of proof in a Title VII case alleging disparate treatment discrimination is a three step procedure: Complainant has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination; the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for its challenged action; and Complainant must then prove, by a preponderance of the evidence, that the legitimate reason offered by the employer was not its true reason, but was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination with regard to claims 1 and 2.
With regard to claim 1, the Agency's articulated reason for Complainant's termination is contained in a June 3, 2010 memorandum from the Agency to Complainant. The memorandum states that "your conduct has been unacceptable. You have continued to demonstrate discourtesy, failure to follow instructions and lack of teamwork with others." Report of Investigation (ROI), Exhibit G5. The memorandum listed "some examples of your behavior" that led to Complainant's termination, including an allegation that she "gave out incorrect information that was outside your area of expertise when you flippantly told a customer who had a question about his wild horse and burro (WH&B) to put it up for sale on Craig's List [sic]. This advice would have resulted in an illegal act for the WH&B program." Id. The memorandum also included allegations that on two occasions Complainant ignored Agency procedures in favor of her own procedures and argued with management that her way was better, with the result in one case that identifying numbers for closed items were re-used for new items, instead of new numbers being used, causing considerable confusion. See id. Finally the memorandum alleged that Complainant accused coworkers of "conspir[ing] to take your computer and replace it with a defective computer" despite being told not to make such allegations by management. See id.
The Agency, having articulated a legitimate nondiscriminatory reason for its action, the burden shifts back to Complainant to show that the articulated reason is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Complainant averred that the reason she felt that her treatment was due to her race and/or religion was because "[s]ome people who are anti-Semitic as [sic] believe Jewish is a race," ROI, Exhibit F1, p.3, and that when she sent an email to a coworker (CW: Caucasian, no religion, female, 37 years) detailing the Agency's alleged recordkeeping "inaccuracies," CW responded with an email that included the word "oy." See id. With regard to sex, Complainant said "if I was a guy none of these things would have happened" id., and with regard to reprisal, Complainant said "People tend to not like when you complain." Id., p.4.
In her affidavit, however, we note that Complainant averred,
I should not have been terminated because I did not do the things that they said. They accused me of deleting information from a database that they have had problems with for the last two years. I brought the mismanaged and poor and inadequate bookkeeping to four different people in supervisory and management positions, and instead of taking measures to correct these problems and issues, they want to use me as a scapegoat for years of poor and inaccurate recordkeeping and poor customer service. All of the allegations they made against me are slander and is [sic] wrong. They have had these problems for years before I began working at the agency.
Id., p. 3
In her Formal Complaint, Complainant alleged that a student intern (SI: female; race, religion and age unknown) was a relative of a former manager and was hired due to nepotism and that "when I voiced my concerns to personnel and management they retaliated against me and then fired me." Finally, during the investigation, when asked why she felt that her removal was because of discrimination based on her protected bases, she averred,
I did not say this happened due to my race, religion, sex, age and due to reprisal. This was done to send a message to others that complained about [SI] that this would happen to them if they complained about [SI] as she was part of the family there. This was nepotism, cronyism, preferential treatment and disparagement.
ROI, Exhbit F1, p. 5.
Such statements by Complainant do not establish that the Agency's articulated reason for her termination is a mere pretext, or otherwise establish that her removal was due to discrimination.
With regard to claim 2, assuming Complainant states a claim when she was moved from her cubicle to another one and was given a defective computer, Complainant's second-level Supervisor (S2: Caucasian, Christian, male, 43) averred that she was moved to be closer to her supervisor, and denied that she was given a defective computer. See ROI Exhibit F2, pp 2-3. S2 further averred that Complainant received the same computer as before because it had the same property number as before and the Information Technology (IT) department confirmed that it was the same computer. See id. Finally, S2 said that Complainant was eventually given a brand new computer. See id. The Deputy State Director (DSD: Caucasian, Methodist, male 47) corroborated S2's statements. See ROI, Exhibit F3, pp. 3-4. The Agency, having articulated a legitimate nondiscriminatory reason for its action, the burden returns to Complainant to establish that the Agency's reason is pretextual. See Reeves, 530 U.S. at 143; St. Mary's Honor Ctr. 509 U.S. at 519.
Complainant contends that she was made to move from her cubicle because SI wanted it and averred that "it was odd that a community college student intern was allowed to get what she asked for in this situation." ROI, Exhibit F1, p.4. Complainant also contends that she was given a defective computer and that "I asked them to review the video tapes to show that [someone in the IT department] had switched the computers, and they refused." Id., p. 4. Complainant further includes the allegations referred to above regarding the "oy" comment in an email and her belief that had she been a man "none of these things would have happened." Id., p. 4.
Following a review of the record we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that the Agency's articulated reasons for its actions are pretextual, or otherwise showing that the Agency's actions were based on discrimination against Complainant's race, religion, age, or sex.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination occurred and we AFFIRM the FAD.
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 7, 2012
__________________
Date
1 The record contains numerous documents from Complainant submitted on fourteen separate occasions. Most of these documents appear to be addressed to the Merit Systems Protection Board (MSPB) and not this Commission. In addition, we note that under 29 C.F.R. � 1614.403(d) any statement or brief must be filed within 30 days of filing the notice of Appeal. This Commission therefore declines to accept any documentation submitted by Complainant after March 8, 2012.
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0120121387
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121387