0120091625
07-13-2009
Gwendolyn G. Goode, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, (Bureau of Labor Statistics), Agency.
Gwendolyn G. Goode,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
(Bureau of Labor Statistics),
Agency.
Appeal No. 0120091625
Agency No. CRC 08-11-078
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 10, 2009 final decision 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
On July 2, 2008, complainant filed the instant formal complaint.1
Therein, complainant alleged that the agency discriminated against her
on the bases of race (African-American) and age (63) when:
on January 28, 2008, she was terminated from her position as an Economic
Assistant, GS-0119-05, during her probationary period.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision on February 10,
2009, pursuant to 29 C.F.R. � 1614.110(b).
In its February 10, 2009 final decision, the agency determined that
regardless of whether complainant established a prima facie case of
race and/or age discrimination, management articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext.
The former Branch Chief (BC) was the deciding official to terminate
complainant during her probationary period based on her unacceptable
conduct. Specifically, BC stated that complainant made untrue statements
to the Director, Customer Price Surveys (D1) concerning her reasons
for reporting to the office on December 28, 2007. BC stated that she
explained to complainant prior to her Entrance-on-Duty (EOD) date, she
would be meeting with staff in the National Office to complete paperwork
that was required on her first day of employment. BC stated that she
also explained to complainant that "there would be a lot of paperwork that
she would need to review before she completed the paperwork. Things like
health and life insurance, enrollment in an FSA were all things that she
could use the remaining 8 hours of her scheduled workweek reviewing."
BC stated that she instructed complainant that "since the holiday
season had a lot of people on leave, I would arrange for her to begin
her orientation process with [her supervisor], when she next reported
to her duty station on January 2, 2008." BC stated that on December 28,
2007, complainant reported to her duty station and was asked why she was
there by [D1] who had helped with the EOD. It was at this point that
[Complainant] lied, claiming at first that [Human Resources Specialist]
and then that I had instructed her to report to her duty station on
that date." BC further stated that D1 called her and had complainant
speak to her directly in which complainant conceded "that she had just
decided to show up, even though there were no tasks for her at her duty
station and I had instructed her to next report on January 2, 2008."
BC stated that she terminated a named employee during her probationary
period "who lied about efforts to complete precourse work for the
initial training." Furthermore, BC stated that complainant's race and
age were not factors in her determination to terminate her during her
probationary period.
D1 stated that in lieu of having the Philadelphia Regional Human Resources
staff travel to Washington D.C. to process complainant on December 26,
2007, she assumed those responsibilities. D1 stated that she arranged
to have complainant's fingerprints and photograph taken; and to have
complainant participate in a new employee conference call. D1 stated
"I assured completion of [Complainant's] EOD materials, collected her
completed forms and EOD materials, made Xerox copies for [Complainant] to
keep, and FedEx-ed the originals to the Philadelphia Regional Office."
Further D1 stated that on December 28, 2007, she received a telephone
call from complainant asking her for the room number so she could
report for work. D1 stated "I was not [Complainant's] supervisor and
was unaware that she was to report to work that day." D1 stated that
she provided complainant "our room number, where we share space with the
Philadelphia Regional Office staff assigned to Washington, D.C. I also
contacted the Philadelphia regional office for instructions." D1 stated
that she received a call from the Human Resources office requesting where
complainant should report to work because she had gone to their office,
and that she provided the room number that she had previously provided
to complainant. D1 stated that when complainant came in her office,
she asked complainant "who had told her to report to work on this date.
She responded, "my supervisor". I asked for a specific name of the
person who had told her to report for work and she said [Human Resources
Specialist] and [BC]."
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).
The agency articulated legitimate, nondiscriminatory reasons for
its actions which complainant did not prove were a pretext for
discrimination.
On appeal, complainant has provided no persuasive arguments indicating
any improprieties in the agency's findings. Therefore, 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
July 13, 2009
__________________
Date
1 The record reflects that the agency first received complainant's
unsigned complaint on April 28, 2008, and returned it to complainant
for signature.
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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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