0120080357
05-20-2009
Felicia D. Alford, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Felicia D. Alford,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080357
Agency No. 2003-0549-2006103314
Hearing No. 450-2007-00192X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 14, 2007, final order 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. Complainant alleged
that the agency discriminated against her on the bases of race (African
American), sex (female), and color (medium brown complexion) when:
1. On or about July 14, 2006, she was terminated during her
probationary period from her position as a Social Worker, GS-11.
2. On May 27, 2006, she was not paid Saturday premium pay.
3. On or about March 2006, through July 2006, she received inadequate
on-the-job training despite repeated requests for training.
Following an investigation by the agency, complainant requested a
hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing finding no discrimination. The AJ found that
complainant failed to establish a prima facie case of discrimination,
or present an inference of discrimination because the selecting
official and the other selectee were the same race, gender and color
as complainant. Nevertheless, the AJ found that assuming arguendo
that complainant established a prima facie case of discrimination,
the agency had articulated legitimate nondiscriminatory reasons for its
actions, namely, that complainant was terminated from her position due
to problems with "adjustment to work, cooperation, interest in work,
punctuality, and attitude." The agency explained that complainant
displayed a confrontational attitude, fell asleep twice during training,
and disobeyed instructions from her second level supervisor. With respect
to the premium pay, the agency explained that a coding error had occurred
and that once complainant alerted her supervisor about the mistake,
steps were taken to correct this error. Similarly, with respect to
complainant's contention that she did not receive adequate training,
the agency explained that no formal training program was in place at
that time she and the other employee were hired, so they were given
on-the-job training. Further, complainant was assigned a trainer who
had only a Bachelor's Degree in Social Work but possessed over 30 years
of experience as a Social Worker with the agency.
On appeal, complainant makes many contentions regarding the way she was
terminated, and the lack of training that was provided to her.
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.
The Commission finds that assuming arguendo that complainant did establish
a prima facie case of discrimination based on race, sex, and color,
we agree that the agency articulated legitimate non-discriminatory
reasons for its actions. Specifically, the agency explained that with
regard to issue (1), complainant was terminated because of problems
with adjustment to work, cooperation, interest in work, punctuality,
and attitude. To show pretext, complainant contends that she had just
received a performance review, dated June 16, 2006, which indicated
that her "conduct" was satisfactory but then on June 30, 2006, just
three weeks later, the Notice of Termination indicated that she was being
terminated due to her "conduct." Complainant maintains that she was never
told about any deficiencies in her work and was given no opportunity to
correct any problems that her supervisor identified with her performance.
The Commission finds that complainant has failed to show that the agency's
reasons were pretext for discrimination. The Commission finds that
regardless of the semantics over the word "conduct," we do not find any
evidence which remotely suggests that complainant's race, sex or color
were considered with regard to her termination. Based on the record,
at most, there appears to have been a personality conflict between
complainant and her supervisor, as complainant mentions several times in
the record that she had a demeanor that the supervisor was not used to.
Similarly, with respect to issue (2) the agency maintained that
complainant was not paid premium pay because there was a coding error
made which was corrected after complainant brought it to the attention
of the supervisor. Complainant has offered no evidence which suggests
that her protected bases were considered with regard to this matter.
As such, we agree that complainant has not demonstrated that the agency's
articulated reasons were pretext for discrimination.
Finally, regarding issue (3) the agency explained that complainant was
not provided formal training because a formal training program was not
in place at the time that she was hired. The agency indicated that
complainant was however, given on-the-job training and was assigned
a mentor. To show pretext, complainant contends that she repeatedly
requested training in order to be able to fully do her job because her
previous experience had been with children and not adults. She contends
that the trainer whom she was assigned to had a lot of experience but
only had a Bachelor's degree, was not familiar with the department's
in-patient procedures and required approval for documentation sign off.
Complainant also maintains that her supervisor cancelled several proposed
training sessions due to a death in the supervisor's family. As proof
that her protected bases were considered, complainant contends that the
candidate that was selected to replace her, a white female in her 50s,
was given formal training and was transferred to another department when
it was determined that she was not a good fit. Complainant maintains
that she was not given this opportunity.
The Commission finds that based on the record, complainant
has failed to show that the agency's reasons were pretext for
discrimination. Specifically, we find that complainant has failed to
provide any evidence which shows that training was available yet she was
denied that training due to her protected bases. The evidence shows that
neither complainant nor the other new hire were given any formal training,
as no handbook was available when they started. Instead they were both
provided on-the-job training and a mentor to go to for advice. With
regard to complainant's allegation that her replacement, a white woman,
was provided training after she was hired and given the opportunity to
transfer to a different department, the Commission is not persuaded that
this was due to discriminatory animus. At best it shows, that management
was better prepared with this hiring and at worst it shows that even with
training this position proved to be challenging. Therefore, we find
that other than complainant's conclusory allegations, she has provided
no evidence that discriminatory animus was involved with regard to her
requests for training. Accordingly, the Administrative Judge's issuance
of a decision without a hearing was appropriate and a preponderance of
the record evidence 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
05/20/09
__________________
Date
5
0120080357
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013