0120080656
10-08-2009
Jeremy B. Dixon, Complainant, v. Gary Locke, Secretary, Department of Commerce (Census Bureau), Agency.
Jeremy B. Dixon,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(Census Bureau),
Agency.
Appeal No. 0120080656
Agency No. 06-63-00201
DECISION
On November 26, 2007, complainant filed an appeal from the agency's
October 19, 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. 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 agency properly found that complainant was not subjected to
sex discrimination when the agency issued him a letter of termination
on September 6, 2006.
BACKGROUND
The record reveals that complainant was hired by the agency on September
26, 2005 as a statistical clerk at the agency's National Processing
Center in Jeffersonville, Indiana. Complainant was subject to a one
year probationary period.
In a letter dated September 6, 2006, the agency informed complainant
that it would terminate him effective September 12, 2006 because of
his unacceptable attendance, unauthorized absences, tardiness, and
failure to follow proper Jeffersonville Telephone Center procedures.
The letter further stated that from October 26, 2005 through August
22, 2006, complainant failed to work on 63 scheduled workdays, and
17 of these absences were unapproved. The letter also stated that
complainant was fifteen minutes late on 27 occasions from October 18,
2005 through August 19, 2006. Additionally, the letter stated that
complainant failed to report to work on August 4, 2006 and did not call
the agency to report his absence. Finally, the letter stated that from
October 28, 2005 through August 24, 2006, complainant called the agency
on 26 occasions to request a schedule change after the final schedule
was issued, which created a hardship on the agency.
On October 27, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of sex (male) when on September 6,
2006, the agency issued him a letter of termination.
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 concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency erred in finding no
discrimination. Complainant argues that the letter of termination
issued to him contained numerous misrepresentations, and the agency did
not notify him of his alleged attendance problems before the letter
was issued. Complainant further contends that the final decision is
"disconnected from what the record clearly shows," ignores agency policy,
and ignores complainant's assertions. Additionally, he contends that
the EEO investigator denied his request to obtain statements from two
witnesses. 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. However, generally, in order to establish a prima
facie case of discrimination, the complainant must first demonstrate
that: (1) he is a member of a protected class; and (2) he was treated
differently, with respect to some condition of employment, from others
outside her protected class and in a manner that creates an inference
of discrimination. See Henson v. Liggett Group, Inc., 61 F.3d 270,
274 (4th Cir. 1995)(citing E.E.O.C. v. Clay Printing Co., 955 F.2d 936,
941(4th Cir. 1992)); Evans, supra.; Saunders v. Stone, Saunders v. Stone,
758 F. Supp. 1143 (E.D. Va. 1991) (citing McDonnell Douglas, 411 U.S. 792
(1973)), aff'd, 948 F.2d 1282 (4h Cir. 1991).
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, complainant is a male who was terminated for excessive
absences and schedule changes, but complainant failed to identify a
similarly situated female employee who was treated more favorably than
he was treated under similar circumstances. Complainant contends that
there is an inference of sex discrimination because his former coworkers
made him feel uncomfortable and stated, "Oh no, we have a man in our
department!" However, complainant has not shown that the management
officials responsible for his terminated exhibited sexist animus or were
aware of his coworkers' comments. We determine that complainant failed to
provide any evidence that would create an inference of sex discrimination.
Thus, we find that complainant failed to establish a prima facie case
of sex discrimination.
We further find that the agency provided legitimate, non-discriminatory
reasons for terminating complainant. Specifically, the Branch Chief
stated that complainant was terminated because of excessive problems
with his attendance. The Chief stated that he reviewed complainant's
attendance records from September 2005 to September 2006 and concluded
that complainant's attendance was amongst the worst he has ever seen in
twelve years as a manager. The Chief further stated that complainant's
attendance was "particularly egregious" because he chose his scheduled
work days, yet had "many, many absences." Exhibit 10, p. 2. The
Supervisory Statistical Assistant stated that complainant failed to report
to work on August 4, 2006, which led her to review his attendance record.
She stated that she prepared a counseling form to address complainant's
overall unacceptable attendance, excessive schedule changes, and August 4,
2006 no-show, but she was unable to give the form to him because of his
continued absences. She stated that she did not terminate complainant,
but spoke to the Branch Chief about complainant's attendance problems.
Complainant argues that the letter of termination issued to him contained
numerous misrepresentations, and the agency did not notify him of his
alleged attendance problems before the letter was issued. However,
complainant acknowledged in his affidavit statement that he submitted
schedule change request forms up to seven times and missed many days
of work for various reasons. In fact, although complainant generally
contends that the agency's attendance records may contain errors,
he failed to site specific dates that the agency erroneously recorded
him as absent. Moreover, although complainant contends that he did not
receive prior notice of his attendance problems, the record reveals that
he received a counseling statement regarding his attendance on November
16, 2005. Furthermore, we note management's assertion that there was an
attempt to counsel complainant about his attendance on August 21, 2006,
but it was unsuccessful because of his absences. Although complainant
contends that there is a lack of documentation in the record regarding
his absences, we note that the record contains time and attendance
reports for complainant from September 26 2005 to September 12, 2006
that substantiates the agency's charges.
Finally, complainant contends that the EEO investigator denied his request
to obtain statements from two witnesses for the investigative record.
Complainant maintains that the two witnesses could rebut the agency's
claim that he failed to call in his absence on August 4, 2006. We note
that complainant had the opportunity to supplement the hearing record
with additional documentation and witnesses by requesting a hearing
before an AJ, but complainant requested that the agency issue a final
decision based on the investigative record. Moreover, we note that even
if the two witnesses had been allowed to provide a statement regarding
the August 4, 2006 incident corroborating complainant's assertions,
the preponderance of the evidence does not establish that the agency's
actions were motivated by sex discrimination. Therefore, we find that
the agency properly found no discrimination.
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
_____10/08/09_____________
Date
2
0120080656
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120080656