0120120250
02-22-2012
Shelley E. Copeland, Complainant, v. Gary Locke, Secretary, Department of Commerce (Bureau of the Census), Agency.
Shelley E. Copeland,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120120250
Hearing No. 550-2011-00346X
Agency No. 10-63-00099D
DECISION
Complainant appeals to the Commission from the Agency’s final decision
dated September 12, 2011, finding no discrimination. For the following
reasons, we AFFIRM the Agency’s final decision.
BACKGROUND
In her complaint, Complainant alleged discrimination based on sex
(female) when she was terminated from her Assistant Manager for Recruiting
position on November 5, 2009. Upon completion of the investigation of the
complaint, Complainant requested a hearing before an EEOC Administrative
Judge (AJ). On August 17, 2011, the AJ issued a decision without
holding a hearing, finding no discrimination. The Agency’s final
order implemented the AJ’s decision.
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal
and evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor.
Id. at 255. An issue of fact is “genuine” if the evidence is such
that a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material”
if it has the potential to affect the outcome of the case.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that Complainant had established a
prima facie case of discrimination, the Agency articulated legitimate,
nondiscriminatory reasons for the alleged termination. The AJ noted that
on September 28, 2009, the Agency appointed Complainant to a temporary
position as an Assistant Manager for Recruiting in Gran Junction Local
Census Office, Colorado, and her appointment was to expire on September
25, 2010. The AJ stated that according to Complainant’s supervisor, on
October 6, 2009, Complainant was the only Assistant Manager who failed to
bring her badge to LCO Management Overview training as she was instructed
to do so; on October 19, 2009, she was two hours late reporting to the
office to meet two of her coworkers to carpool to another location,
forcing them to wait for her; on October 26, 2009, she failed to follow
his instructions to wait for his arrival and remarks prior to starting a
testing session, forcing him to interrupt the session to make his remarks;
and she failed to secure “Title VIII and PII” materials in a locked
storage cabinet. Report of Investigation (ROI), Exhibit (Ex.) 9 at 11.
Complainant does not dispute the foregoing statements. The supervisor
also stated and Complainant does not dispute that her first formal work
assignment was inadequate reflecting at best a cursory effort replete
with incorrect percentage calculations; and that on November 4, 2009,
she failed to bring any recruiting literature with her to a meeting with
the Lake County Commissioners in Leadville, a “hard-to-recruit” area
despite his prior instructions to do so. ROI, Ex. 10 at 4, 5.
Complainant’s Area Manager, considering the foregoing incidents,
terminated Complainant on November 5, 2009, due to her unacceptable
conduct and performance. ROI, Ex. 18. The AJ noted that Complainant’s
conduct and attitude generated complaints from several coworkers prior
to her termination consistent with the Agency’s articulated reasons
for the termination. Specifically, a number of coworkers indicated that
Complainant was “very unprofessional and borders on insubordination”,
demonstrated a “bad attitude”, and did not follow Agency procedures in
her work and argued with her supervisor. Complainant’s Administrative
File (CAF) at 182 – 186. An identified coworker also complained to
the Area Manager that Complainant told him that she possibly intended to
falsely report mileage amounts in order to receive monetary compensation
from the Agency. CAF at 185. Upon review, we find that Complainant
failed to identify any similarly situated individuals outside of
her protected classes who were treated differently or more favorably.
The AJ stated, and we agree, that it appears that Complainant alienated
her coworkers and supervisors with her unprofessional, uncooperative
behavior and we find that the Agency’s decision to terminate her was
not motivated by discrimination as she alleged.
CONCLUSION
Accordingly, the Agency’s final order 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
2/22/12
__________________
Date
2
0120120250
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120120250