0120091632
06-23-2009
Mary D. Rowe, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Mary D. Rowe,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120091632
Agency No. IRS-08-0299-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 4, 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.
In October 2007, complainant was hired as a Contact Representative, GS-962-05, at the agency's Internal Revenue Service, Austin Accounts Management in Austin, Texas, subject to a six to eight month probationary period.
On February 15, 2008, complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On May 16, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her on the bases of race (African-American) and age (60) when:
1. she was provided with less assistance and training than was provided to other class members;
2. her request for annual leave November 19-23, 2007 was denied;
3. she was charged as Absent Without Leave (AWOL) for November 19-21, 2007; and
4. on January 4, 2008, she was terminated during her probationary period.1
On June 12, 2008, the agency issued a partial dismissal. The agency accepted claims 1 and 4 for investigation. The agency dismissed claims 2 - 3 pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact.
At the conclusion of the investigation concerning claims 1 and 4, 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 4, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its February 4, 2009 final decision, the agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact. The agency then addressed claim 1 on the merits finding no discrimination. Specifically, the agency found that complainant did not establish a prima facie case of race and age discrimination.
With respect to claim 4, the agency found that complainant did not establish a prima facie case of race and age discrimination. The agency further found that assuming, for the sake of argument, that complainant established a prima facie case of race and age discrimination concerning claims 1 and 4, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
Regarding claim 1, the Classroom Manager (CM) stated that she was not aware of any time complainant "was not provided with the same assistance and training the rest of the class received except when she took off the week of November 19 through 23, 2007. The time she missed was up to her to catch up on. This was true for anyone who would miss a day of the training. She never once asked me for any extra help or assistance."
Complainant's classroom instructor (C1) stated "I believe all students were treated the same. I don't remember [Complainant] asking many questions. We had a system in place where any student with a question would write their name on a board and we would answer their questions in that order." C1 further stated "as far as I can recall [Complainant] never complained to me directly that her questions were not being answered. She did comment to the class once that she was overlooked on the list but it was quickly corrected and her questions were answered. It is not uncommon for the beginning class to wait a while for answers."
Another classroom instructor (C2) stated "in the classroom there was a sign up sheet for assistance. This was created so that the students could be helped on a first come first serve basis." With regard to complainant's allegation that C2 ignored her request for assistance and once crossed her name off of the assistance list without providing assistance, C2 stated if complainant "was crossed off of the list for assistance with a case, or a question that she may have while working the live work, and then not helped it was not done intentionally or on purpose. She never brought it to my attention if this happened."
With respect to complainant's allegation that C2 created a nickname for her, C2 stated "there were many people in the classroom that I called by my own self-created nicknames when calling on them. I frequently rename people and there were others that I referred to as Ms.'s and Mr.'s. The complainant was not the only one and age had nothing to do with it."
Regarding claim 4, the Program Manager (PM) stated that she was the deciding official to terminate complainant during her probationary period. Specifically, PM stated that complainant was terminated because of AWOL. PM stated that during the relevant time, complainant was a probationary employee who was attending training classes. PM stated that on October 5, 2007, complainant submitted a written request for leave from November 19, 2007 through November 23, 2007. PM further stated that on October 9, 2007, CM provided complainant a written denial stating that complainant "was needed to attend class and she would fall too far behind and that classes could not be made up." PM stated that on November 18, 2007, complainant left CM a voice message stating she would not come in to work from November 19, 2007 through November 23, 2007. PM stated that complainant "in fact, took the leave after it was clearly denied and was therefore, charged with Absent Without Leave (AWOL)." PM stated "management followed the agency rules and procedures for terminating probationary employees as found in IRM 6.300.1.15.1." Moreover, PM stated that complainant's race and age were not factors in her determination to terminate her during her probationary period.
On appeal, complainant states "had I had been given the same opportunity and shown the same consideration as [named probationary employee] my leave request would not have been denied, and I would not have been terminated."
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. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Therefore, 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 concerning claims 1 and 4 because the preponderance of the record evidence does not establish that discrimination occurred.
Because we affirm the agency's finding of no discrimination concerning claim 1 for the reason stated herein, we find it unnecessary to address dismissal grounds (i.e. untimely EEO Counselor contact).
Claims 2 - 3
In its June 12, 2008 partial dismissal, the agency dismissed claims 2 - 3 on the grounds of untimely EEO Counselor contact. The agency determined that complainant's initial EEO contact was beyond the 45-day limitation period. The agency stated that by letter dated May 27, 2008, complainant was asked to provide an explanation why she did not seeking counseling concerning claims 2 - 3 within the 45-day time frame. In her response, complainant stated that she complained the denial of her annual leave to the union. (claim 2) Complainant also stated that she was charged with AWOL even though her union steward met with an agency official concerning the matter and assured her that she would not be charged with AWOL (claim 3). The agency further stated that complainant's use of an internal agency procedure does not toll the time limit for initial EEO contact and that notices informing employees of their rights under Title VII are clearly posted at complainant's facility.
Further, the agency submitted a copy of a declaration dated June 10, 2008 from the EEO Specialist stated that that EEO posters containing the statutory time-frame for initial EEO contact have been posted in complainant's former facility. Specifically, the EEO Specialist stated that the EEO Poster was posted at the agency's Austin, Texas facility in "3 locations: Downstairs by the Customer Service Building Atrium, upstairs on the wall by the training rooms and downstairs in the Customer Service Building Cafeteria. These posters have been visible for more than 2 years (2006-2008)." In addition, the agency provided a copy of an EEO Poster that provides contact information and statutory time-frames.
Upon careful review of the record, the Commission finds that claims 2 - 3 were properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2). The Commission has consistently held that utilization of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. U.S. Postal Service, EEOC Appeal No. 01954021 (October 5, 1995) (citing see International Union of Electrical Radio and Machine Workers AFL-CIO, Local 790 v. Robbins and Meyers, Inc., 429 U.S. 229, 236 (1976)); Williams v. U.S. Postal Service, EEOC Request No. 05910291 (April 25, 1991). Moreover, based on a review of the record, complainant, at the least, had constructive notice of the time limitation for seeking counseling. Therefore, we find that complainant failed to provide sufficient justification for extending the time limit for contacting an EEO Counselor. The agency's dismissal of claims 2 - 3 was proper and is hereby AFFIRMED.
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
June 23, 2009
__________________
Date
1 The record reflects that on December 20, 2007, complainant was offered an opportunity to resign from her probationary period position in lieu of termination but complainant opted not to resign.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120091632
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091632
7
0120091632