0120081340
08-27-2009
Vanskie D. Elder, Complainant, v. Steven C. Preston, Administrator, Small Business Administration, Agency.
Vanskie D. Elder,
Complainant,
v.
Steven C. Preston,
Administrator,
Small Business Administration,
Agency.
Appeal No. 0120081340
Agency No. 09-06-035
DECISION
On January 22, 2008, complainant filed an appeal from the agency's
December 17, 2007 final decision 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is deemed timely and 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
Whether the final agency decision properly concluded that the agency
did not subject complainant to discrimination on the bases of race, sex,
age, disability, and in reprisal for prior EEO activity when it failed
to renew his temporary appointment on April 28, 2006.
BACKGROUND
The record reveals that on October 10, 2005, the agency hired complainant
as a GS-09 paralegal specialist at the Office of Disaster Assistance
Loan Processing and Distribution Center in Fort Worth, Texas, pursuant
to an initial 90-day temporary appointment that ended on January
21, 2006. On January 21, 2006, the agency extended complainant's
temporary appointment to April 15, 2006, and on April 15, 2006, the
agency extended complainant's appointment until April 28, 2006. In his
paralegal specialist position, complainant assisted with closing disaster
loans made by the agency because of Hurricanes Rita and Katrina.
On April 21, 2006, complainant's team leader reassigned complainant
to non-loan closing duties. On April 28, 2006, the agency informed
complainant that his temporary appointment with the agency would not
be renewed. In a letter that accompanied the notice of separation,
the agency informed complainant that it would not renew his appointment
because he exceeded his authority by contacting a borrower directly
in writing and telling him to remit an overpayment amount in order
to prevent future debt collection efforts. The letter stated that
the amount requested by complainant had already been deducted at the
original processing of the loan, and complainant's actions were beyond the
authority of the Legal Department in which he worked. The letter further
stated that complainant also failed to follow instructions when he typed
a deed of trust and failed to obtain the opinion of legal counsel before
disbursing secured loans.
In investigative affidavit, the supervising attorney for the Home
Loan Closing and Disbursing Group stated that the agency did not renew
complainant's temporary appointment because of complainant's conduct
and failure to follow office procedures and rules. She stated that
although complainant received the training that all paralegal specialists
received, he did not meet the goals of the Home Loan Closing Group with
respect to customer service, quality service, or the amount of services.
The supervising attorney stated that complainant's work on several files
indicated that he lacked an understanding of agency goals, procedures,
policies, and basic lending requirements. The supervising attorney
stated that complainant exhibited hostile and belligerent behavior when
his work performance was corrected, including raising his voice during
discussions of his work performance with supervisors. The supervising
attorney further stated that complainant did not follow the chain of
command and frequently took actions outside the scope of his authority.
Additionally, the supervising attorney stated that she provided feedback
to complainant on March 14, 2006 regarding his duty to answer borrowers'
calls, and complainant's team leader counseled complainant consistently
regarding his work performance. She stated that complainant was not able
to meet his production goals or successfully multi-task at the level
required by the disaster program. "This inability to meet production
goals and customer service goals often resulted in [complainant] attacking
the goals rather than concentrating on ways to better his performance,"
the supervising attorney stated. Exhibit 11, p. 13.
Complainant's team leader stated that although complainant knew that he
was required to obtain an attorney opinion before making a disbursement,
he disbursed funds without an attorney opinion on more than one occasion.
The team leader also stated that complainant created "ad hoc" loan
documents in violation of the agency's standard practice. The team
leader further stated that complainant improperly demanded repayment
from a borrower, which is the responsibility of loan officers, not
legal staff.
The team leader also stated that complainant changed the mail organization
procedure without obtaining supervisory approval and only attained
approximately one fourth of the daily mail review goal. The team
leader further stated that complainant was volatile, blamed the team
leader for not processing a loan promptly, and argued and intimidated
team members.
Complainant's previous team leader stated that he supervised complainant
for one month in late 2005, and he observed that complainant did not
follow agency disbursement policies and procedures, completed a low
number of daily disbursements, and had a backlog of mail. He stated
that he would return a file to complainant with suggestions each time he
reviewed complainant's files, but complainant responded in a defensive,
loud, and abrupt manner.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his 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 found that complainant did not
establish a prima facie case of age and disability discrimination and
failed to prove that the agency's articulated reasons for its actions
were pretext for unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant contends that his complaint should be amended to
include a claim that the agency's actions also violated the Whistleblower
Protection Act. Complainant also alleges that the EEO investigator
failed to pursue evidence related to alleged Whistleblower Protection
Act violations. Complainant further contends that he did not receive
any documented counseling until he received a letter dated April 27,
2006 informing him that his temporary assignment would not be renewed
and an unsigned letter charging him with failure to follow instructions.
Complainant contends that his "abrupt termination" was due in part to
him explaining to borrowers their lawful right to file a congressional
complaint if agency officials failed to respond to borrowers' concerns.
Complainant maintains that he told a borrower that if agency officials
did not respond to the borrower's concerns, he should file a congressional
complaint regarding the matter.
Complainant maintains that he discovered that a borrower had not revealed
that he received funds from the Federal Emergency Management Agency
(FEMA), but the agency's loan modification officer and his team leader
failed to respond to the matter. Complainant maintains that he therefore
notified the borrower that he would not be able to disburse more money
to the borrower because of the potential duplication of benefits.
Complainant contends that the unauthorized demand letter that he sent
to the borrower was "justified and appropriate." The agency requests
that we affirm its final decision.
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 EEOC Management
Directive 110, 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").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we assume arguendo that complainant is an individual with
a disability and established a prima facie case of discrimination.
Nonetheless, we determine that the agency provided legitimate,
non-discriminatory reasons for not extending complainant's appointment,
as detailed above. Complainant contends that he did not receive any
documented counseling until he received a letter dated April 27, 2006
informing him that his temporary assignment would not be renewed and
an unsigned letter charging him with failure to follow instructions.
However, management officials consistently stated that they regularly
verbally counseled complainant regarding his work performance, but
complainant was hostile to any efforts to improve his performance and
conduct.
Complainant also contends that he merely informed borrowers of their
lawful right to file a congressional complaint if agency officials
failed to respond to their concerns. Likewise, complainant contends
that he was justified in demanding that a borrower return money to
the agency. According to the agency, however, complainant's actions
violated the established procedures and policies for handling these
matters. The agency maintained that complainant's actions were not
only outside the scope of his authority but also apparently based on
erroneous assumptions that could have been corrected if complainant had
gone through the proper channels. For instance, what complainant thought
was an overpayment to the borrower was not an overpayment because FEMA
funds given to the borrower had already been considered at the time of
the Small Business Administration's loan approval. Based on the above, we
conclude that the agency reasonably determined that complainant's failure
to abide by established agency procedures and act within the scope of his
authority made him unsuitable for continued employment with the agency.
Consequently, we find that the agency properly found no discrimination
because complainant failed to prove that the agency's explanations were
pretext for unlawful discrimination or reprisal.
Finally, we note that on appeal, complainant contends that the EEO
investigator failed to investigate his whistleblower claims and requests
that his complaint be amended to include his claim that the agency
violated the Whistleblower Protection Act. We note that the Commission
does not have jurisdiction over Whistleblower Protection Act claims.
See Reavill v. Department of the Navy, EEOC Appeal No. 05950174 (July 19,
1996).
CONCLUSION
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 decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
08/27/09
____________
Date
2
0120081340
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120081340