0120103153
10-25-2011
Thomas J. Mazerbo, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Rural Development), Agency.
Thomas J. Mazerbo,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Rural Development),
Agency.
Appeal No. 0120103153
Hearing No. 520-2009-00362X
Agency No. RD-2009-00089
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s June 15, 2010 final order concerning his 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.
BACKGROUND
Complainant, a former Rural Business and Cooperative Loan Specialist,
filed a formal complaint on January 25, 2008. Therein, Complainant
alleged that he was subjected to harassment and a hostile work environment
on the bases of age (over 40) and in reprisal for prior EEO activity when:
1. he was not selected for several jobs because he did not “fit in”
(positions not specified);
2. he was given a directed reassignment to Johnstown, New York;
3. he was denied the opportunity to work from home;
4. he was denied training; and
5. he was denied a reasonable accommodation.
Following the investigation into his formal complaint, Complainant
requested a hearing before an EEOC Administrative Judge (AJ). On April
22, 2010, the AJ issued a decision by summary judgment in favor of
the Agency. The Agency fully implemented the AJ's decision in its
final order. The instant appeal followed.
In her decision, the AJ found no discrimination. The AJ found that
Complainant did not establish a prima facie case of age and retaliatory
harassment. The AJ nevertheless found that the Agency articulated
legitimate, nondiscriminatory reasons for its actions which Complainant
failed to show were a pretext.
In reaching this decision, the AJ determined that the record established
the following facts. In 2005, Complainant reported the New York State
Director (D1) of Rural Department (RD) to the Office of Special Counsel
with a whistleblower complaint. The record further reflects that
Complainant’s complaint was found to be without merit. In 2008,
Complainant repeated the whistleblower complaint to the Office of
Inspector General (OIG) after D1 requested that OIG contact Complainant
when he became aware of an alleged death threat made by Complainant
to him. The OIG found no wrongdoing on D1’s part.
Regarding claim 1, the AJ noted that in his affidavit, Complainant
stated that he was not selected for the following three positions:
Community Programs (CP) Specialist position advertised under Vacancy
Announcement No. RDNY-06-10, Area Director position advertised under
Vacancy Announcement No. RDNY-07-04, and the Area Specialist position
advertised under Vacancy Announcement No. RDNY-08-01.
Thirty-six candidates applied for the position of CP Specialist in which
13 candidates, including Complainant, made the Best Qualified List.
The Community Programs Director (CPD) stated that he was the lead
panelist for the position of CP Specialist. CPD stated that all of
the candidates made the Best Qualified List and were interviewed for
the subject position. CPD stated that the scoring for each question
was based on a scale from 1 to 5, where 1 was the lowest and 5 was the
highest. CPD stated that the selectee was chosen by the panel based on
her highest ranking score. CPD stated that the selectee’s answers to
the questions “demonstrated to the panel a high degree of knowledge,
skills and ability. The complainant’s responses were weak, vague
and offered no specific examples of the required skills and abilities
relative to the selectee.”
Five candidates applied for the position of Area Director, but four
candidates made the Best Qualified List. D1 stated that he was
the selecting official for the subject position. D1 stated that
he implemented a panel of three Agency officials. D1 stated that
following the interviews, he received a recommendation from the panel
for consideration. D1 stated that he selected two named selectees for
the subject positions because they were best qualified. Specifically,
D1 stated that the two selectees “demonstrated most or all of the
following relevant qualifications: extensive management experience
with USDA RD and/or Federal agencies, excellent performance in their
current position duties, broad program experience within USDA RD,
significant and relevant private sector work experience including
supervisory experience, extensive computer and USDA licensed software
skills, strong oral communication abilities, and the ability to answer
interview questions clearly and directly.”
D1 stated that he did not select Complainant for the subject position
because he “demonstrated no management experience with USDA RD.
He demonstrated broad RD program experience, but had acquired minimal
office technology skills; he had just recently begun online and classroom
training to learn to operate a computer and use office programs (Word,
Excel, etc.), send emails, compose documents, work in the Agency’s
internal program tracking systems, and fill out forms electronically,
and was not yet proficient with any of those systems. His responses
to the interview questions seldom answered the questions directly,
frequently rambled and did not display a grasp of the essential functions
of management.” D1 stated that while the selectees received overall
scores of 121 and 115, Complainant received an overall score of 61.
Furthermore, D1 stated that the panel members “stated that they scored
[Complainant’s] responses generously.”
With respect to Complainant’s allegation that people were told that
they “had to fit in” or asked if they would fit in to be selected
for positions, D1 denied it. Specifically, D1 stated “to my knowledge,
no employee or applicant has ever been told that they ‘had to fit in’
or asked if they would fit in; nor would I tolerate any such statement.”
The record reflects that 23 candidates applied for the position of Area
Specialist but 8 candidates made the Best Qualified List. The Loan
Specialist of the Agency’s Batavia, New York office stated that he was
the selecting official (SO) for the subject position. SO further stated
that seven candidates applied for the subject position and were referred
to him for consideration. SO stated that he implemented a panel of three
Agency officials, including himself. SO stated that the panel asked
all of the seven candidates the same questions. SO stated that prior
to the interviews, the panel discussed benchmarks for each question.
SO stated that after each interview, the panel “discussed the notes
taken against the benchmark and a score was assigned. The score could
be from 1 to 10, with 10 being the highest score.” SO stated that
the candidate “who scored the highest was not selected. This was
based on a stronger resume by the candidate who score second highest
on the interviews and had a stronger resume. The two candidates were
very close in their interview scores.” The record reflects that the
selectee selected for the subject position had an overall score of 144.
SO stated that he did not select Complainant for the subject position
because he received an overall score of 86. SO also stated that
Complainant did not do well during the interview.
One of the three panelists (P1) stated that all of the candidates on
the Best Qualified Certificate were interviewed. P1 stated that he
and the other two panelists “discussed before any of the interviews
took place what type of responses or benchmarks to each question that we
were looking for in the candidate’s responses. After each interview,
the panel discussed the notes taken and compared them to the benchmarks
that we previously discussed. We then assigned a number from 1 to 10
[with the rating] 10 being exactly what we were looking for and 1 for
not addressing any of the benchmarks. Those questions that dealt with
critical issues, as outlined in the position’s Standards & Elements,
were weighted by two times. Each of the question’s score was added
together to get a total score.” P1 stated that while the candidate
with the highest score was not recommended for the subject position,
the candidate who scored the second highest was recommended because this
candidate “had a stronger resume than the other applicant and because
the verbal interview scores differed only by a few points.”
P1 stated that the selectee answered the interview questions “fully and
gave examples, came in with a positive attitude, and interviewed well.
The complainant didn’t interview well, gave few examples, and had a
negative attitude. The main message or theme in the complainant’s
interview was ‘it’s time to make things right’ which he stated
several times during the verbal interview.”
Regarding claim 2, the AJ noted that Complainant was reassigned to the
Johnstown Office due to an alleged inappropriate relationship with an
employee. The AJ determined that even if the allegation was not true,
there was no evidence that the reassignment had anything to do with
Complainant’s age.
D1 stated that he was the deciding official to have Complainant
reassigned to the Johnstown Office. Specifically, D1 stated that in
2004, USDA RD “was implementing a consistency plan that called for all
staff members titled Community Development Managers (CDM), including
[Complainant], to become supervisory Rural Development Managers (RDM)
in their respective offices. CDMs were not supervisory, but as team
leaders were responsible for oversight of daily office functions and
assigning work to others in the office, subject to direction, review
and oversight by the Area Directors.”
Further, D1 stated that Complainant consistently gave one of his employees
favorable treatment “which resulted in that employee not being required
to perform tasks expected of that position title, created a hostile
work environment for other office employees, some of whom were directed
by [Complainant] to perform tasks that should have been performed by
the favored employee in addition to their own work. [Complainant’s]
supervisor counseled him to cease his favorable treatment of one employee;
when he persisted in his behavior, his supervisor recommended to me
that I reassign him before he assumed supervisory responsibilities,
since he repeatedly demonstrated that he could not treat his office
employees fairly.”
D1 stated that Complainant kept an inappropriate picture of the Technician
and himself on his desk “even after his supervisor directed him to
remove it. [Complainant] and the Technician wore unprofessional and
inappropriate name badges while on duty at a large public outreach
function stating that each belonged to the other. Other office staff
members stated that [Complainant], as an office team leader, did not
treat them equally. His continued conduct of this relationship in the
office, over a period of several years, despite repeated attempts by
his supervisors to correct this behavior, demonstrated conclusively
to me that he would not supervise his staff fairly, and was the reason
for his reassignment [emphasis in its original].” D1 stated that the
Johnstown Office was the only office with a vacant non-supervisory GS-12
position available for which Complainant was qualified.
D1 stated that during the relevant time, he reassigned 13 other employees
to various Agency offices due to several reasons such as abolishment of
positions and reorganizations. The record reflects that 11 out of the
13 employees were over the age of 40.
With respect to Complainant’s allegation that he was reassigned to
the Johnstown Office because he reported to the OIG concerning D1’s
inappropriate use of government funds, D1 stated that the decision to
transfer Complainant “out of the Batavia office was reached long before
[Complainant] made his complaint to OSC or OIG.”
Regarding claims 3 and 5, the AJ noted that on July 1, 2007, Complainant
requested to work from home. Specifically, the AJ noted in his affidavit,
Complainant stated that he had been diagnosed with Reflex Sympathetic
Dystrophy (RSD). The AJ further noted that Complainant stated that his
diagnosis “can be very debilitating” but did not provide any evidence
as to how this affected any of his major life activities.
D1 stated that Complainant requested to work from home because “he
believes that he made this request as a reasonable accommodation, but
working from home is not considered a reasonable accommodation.” D1
stated that Complainant requested to work from home to “reduce stress
of my current condition.” D1 further stated that Complainant’s
medical release to return to work “did not place restrictions to
job description, which were made by RD and approved by the Department
of Labor. His request to work from home was denied for several reasons:
because his work required visits to prospective Business Programs clients
in his assigned service territory of the Eastern part of the State but
his proposed telework site was located in the Western part of the State;
because he had not yet acquired the computer and software program skills
necessary to successfully work from home despite extensive training;
and because he needed on-the-job training and mentoring from other
Program Specialists which could only be accomplished in the workplace.
His supervisor recommended that I disapprove his request for those
reasons.”
Complainant’s first level supervisor (S1) stated that Complainant was
denied the opportunity to work from home because “1) Complainant’s
telework location was not within commuting distance of the locations of
meeting sites related to his service area of the ‘Eastern one-third’
of the state. 2) Complainant demonstrated a lack of proficiency in the
required technologies needed to successfully telework. 3) On the job and
mentoring training required physical presence at face to face meetings
with clients and other co-workers.”
Moreover, the AJ noted that a review of the record reflects that ten
employees have a work-at-home arrangement. The AJ noted that nine out
of ten employees were permitted to work from home to decrease travel
distances. The AJ noted that one employee was allowed to work from
home due a family reason. The AJ found no evidence in that record that
any of these ten employees had a history of being reassigned due to an
inappropriate relationship with an employee or that any of the employees
are not able to work comfortably with computers.
Regarding claim 4, the record reflects that in his testimony, D1 submitted
a seven-page list of the training courses assigned to Complainant.
D1 stated that Complainant “also received extensive (at least ten days)
personal mentoring from other Rural Business Program specialists who
accompanied him on lender visits and outreach meetings.” D1 further
stated that Complainant “was not denied any training courses of which
I am aware. He received far more training than any other New York RD
employee in the months between his return to work and his voluntary
retirement.”
CONTENTIONS ON APPEAL
On appeal, Complainant argues that Agency erred finding no discrimination.
For instance, Complainant argues that the EEO investigator conducted
a poor investigation. Specifically, Complainant states that the
EEO investigator failed to interview his witnesses and review other
employees’ training record “to see if they were given the same
amount of training that was forced on me.” Complainant argues that
management would not allow him to work “near my home where I lost my
dad & had to take care of my eighty- year old mother and I also suffered
a disease called RSD.”
Finally, Complainant argues that he was retaliated against by management
“because of my age and because of my position in the Union and for
whistle blowing in the State Director.”
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. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Complainant, on appeal, argued that the Agency conducted an inadequate
investigation by not considering the information he requested them
to review or the witnesses he requested in support of his claims.
We determine that the Agency properly conducted an adequate investigation
of the instant complaint. We further determine that Complainant has
provided no persuasive arguments indicating any improprieties in the
AJ’s decision without a hearing. In particular, the Commission notes
that in her final decision, the AJ expressly delineates forty-five
material facts that were not in dispute, encompassing the matters
identified in the subject claims. Complainant has not identified genuine
issues of material fact that require resolution through a hearing.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that unlawful discrimination occurred.
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
October 25, 2011
__________________
Date
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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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