0120091888
08-21-2009
Vernon M. Fuller, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Vernon M. Fuller,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120091888
Agency No. RD-2007-00197
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 5, 2009 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
During the period at issue, complainant was employed as a Rural
Development Area Director, GS-13, at the agency's Tavares Area Office
(Area Four) in Tavares, Florida.
On January 3, 2006, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of race (African-American), age (over 40), and in reprisal
for prior EEO activity when:
on November 8, 2006, his supervisory issued him a formal Letter of
Reprimand (LOR).
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 on January 5,
2009, pursuant to 29 C.F.R. � 1614.110(b).
In its January 5, 2009 final decision, the agency found no discrimination.
Without addressing the prima facie analysis of complainant's disparate
treatment claim based on race, age and retaliation, the agency found
that management articulated legitimate, nondiscriminatory reasons
for its actions which complainant failed to show were a pretext for
discrimination.
The State Director (SD) stated that on November 8, 2006, he issued
complainant a LOR for failure to follow instructions, negligence in
performing official duties and conduct prejudicial to the best interests
of the service. SD stated that during the 2006 fiscal year, the agency
initiated a new Accountability Plan in Florida and the U.S. Virgin Islands
for monitoring and tracking its annual mission goals and objective which
were to be directly related to a new 5-tier Performance Rating system.
SD further stated that beginning October 2005 up to the date of the
issuance of the LOR, he had numerous meetings and oral counseling
sessions with complainant concerning the implementation of the plans for
his area. SD stated that complainant "became increasingly combative
in this process in part because all of his offices were not meeting
their goals and objectives and it was his responsibility to implement
the consequences indicated in the Accountability Plan. Other issues
stemmed from his dissatisfaction with the new plan and my prerogatives
as State Director. His conduct toward me became argumentative and
eventually uncommunicative." SD stated that in several of complainant's
written memorandums to him were "disrespectful and insubordinate."
SD stated that he made every attempt to assist complainant and correct
the conduct "that was becoming more unprofessional, problematic and
increasingly defiant. Having exhausted the oral counseling and management
meetings, choosing Reprimand was the lowest possible disciplinary
action I could take on each of the specifications. Hopefully, it would
ensure [complainant] understood that his continued conduct would not
be acceptable."
SD stated that he contacted Human Resources after it became apparent
to him that complainant did not respond to the repeated meetings and
oral counseling sessions by correcting his conduct. SD stated that
he and the Human Resources Manager (HR Manager) discussed his State
Director position, complainant's employment and "determined what would
be the most appropriate path based upon the USDA Guide for Disciplinary
Penalties. A Reprimand was the lowest possible form of discipline for
the specifications." SD stated that after the HR Manager prepared
the LOR, he issued it to complainant. Furthermore, SD stated that
complainant's race, age and prior protected activity were not factors
in his determination to issue him a LOR.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, 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
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions, that were not a pretext for
discrimination.
On appeal, complainant argues, in essence, that the final agency decision
does not reflect sufficient consideration of the factors surrounding the
issues before and after the issuance of the subject Letter of Reprimand.
However, the Commission nonetheless determines that complainant has
provided no persuasive arguments indicating any improprieties in the
agency's findings. After a review of the record in its entirety,
including consideration of all statements 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
August 21, 2009
__________________
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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