Paul Kmiecik, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMay 12, 2009
0120090810 (E.E.O.C. May. 12, 2009)

0120090810

05-12-2009

Paul Kmiecik, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.


Paul Kmiecik,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120090810

Agency No. FS-2007-00307

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's October 22, 2008 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.

During the period at issue, complainant was employed as a Physical Science Technician, GS-1311-09, at the agency's Forest Products Laboratory in Madison, Wisconsin.

On April 14, 2007, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the bases of race (American Indian) and in reprisal for prior EEO activity when:

1. on November 28, 2006, he received a marginal performance evaluation;

2. in December 2006, he learned that his position description was changed in March 2006; and

3. he was reassigned from the Water Filtration project to the Adhesives project effective January 9, 2007.

At the conclusion of the investigation, complainant was provided with a copy of the 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).

In its October 22, 2008 final decision, the agency found that complainant did not establish a prima facie case of race and reprisal discrimination. The agency nonetheless found that management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.

Regarding claim 1, the record reflects that in his declaration, complainant's supervisor (S1) stated that he gave complainant a marginal evaluation because his laboratory notebook was "incomplete and poorly written and was not sufficient . . . for the job he was expected to do." S1 further stated that there was no previous counseling concerning this matter because "that was my first time going through the note books of all of my employees." Furthermore, S1 stated that he did not discriminate against complainant based on his race and prior protected activity.

The Research Chemist (RC) stated that he handled complainant's day-to-day work assignments. RC further stated while complainant does what he is asked, "it is just that you have to spell things out in greater detail than I would expect and the rate of getting things done is not as much and as I said, his skills were not what I expected either, but we are working on that; one thing at a time."

Regarding claim 2, the record reflects that complainant's former supervisor (FS), now retired, asserted that he reviewed and updated the position descriptions for all his employees. He further stated that he attempted to rewrite complainant's position description to reflect the duties he was performing as a chemist, but told complainant that he needed his university transcript to make the changes. Specifically, FS stated that when he reviewed complainant's job description with complainant, he stated "I said your responsibilities and duties have increased and therefore, I think it is time to rewrite your position description. You are functioning as a chemist, but you are a physical science technician. I would like to rewrite it under the guidelines of a chemist. And what I need for Personnel is evidence that you qualify as a chemist. He said well, I do." FS stated that because complainant would not give him his transcript, he could not put complainant "under the chemist series, because I had no evidence that he was a chemist." Complainant asserts that the agency had a copy of his college transcript when he was originally hired over twenty years ago, but did not explain why he did not not provide his supervisor with an additional copy when requested.

Regarding claim 3, S1 stated that complainant was reassigned from the Water Filtration Project to the Adhesives project because "we finished the [water filtration] project." Complainant, however, asserts that another employee (Caucasian) was allowed to tie up loose ends on the project while he was not.

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, and that complainant has not demonstrated that these reasons 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

May 12, 2009

__________________

Date

2

0120090810

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120090810