0120092750
10-27-2009
Ricky E. Robinson, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Ricky E. Robinson,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120092750
Agency No. FS-2007-00797
Hearing No. 550-2008-00167X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 13, 2009 final order concerning an equal
employment opportunity (EEO) complaint claiming 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 August 6, 2006, complainant was hired as an Administrative Support
Assistant, GS-303-06, at the Tongass National Forest, Supervisor's Office,
in Petersburg, Alaska, subject to a one-year probationary period.
On September 29, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of race (African-American), sex (male), and age (over 40)
when:
on May 4, 2007, he was terminated from his Administrative Support
Assistant position, GS-0303-06.
Following the investigation into his formal complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On March
27, 2009, the AJ issued a decision by summary judgment in favor of
the agency. The agency fully implemented the AJ's decision in its
final order.
The AJ found that complainant established a prima facie case of race,
sex and age discrimination. However, the AJ found that the agency
articulated legitimate, non-discriminatory reasons for its actions which
complainant failed to show were a pretext.
The AJ noted that complainant's first-line supervisor (S1) stated that
complainant was terminated during his probationary period because he "was
not an appropriate fit for the agency. He was given ample opportunity to
demonstrate improvement, but failed to do so." Specifically, S1 stated
that complainant's termination "resulted from a culmination of performance
and conduct issues. I had a lot of counseling sessions with him regarding
his performance. His attitude during the counseling sessions was poor,
and he tended to be argumentative. I informed [complainant] on many
occasions that he needed to communicate with me on a regular basis,
but he rarely complied with these directions." S1 further stated that
he received complaints from members of the general public and co-workers
about complainant's rude and authoritative attitude.
Regarding the contention that complainant and S1 only had two face-to-face
meetings before the third meeting when complainant was terminated, S1
denied this contention. S1 stated that complainant had visited the
agency's Ketchikan, Alaska office "on at least two occasions during
the course of his employment. Additionally, I met with him on every
occasion that I visited the Petersburg Office. I would estimate that
we met on more than a dozen occasions prior to his termination."
Moreover, S1 similarly denied complainant's contention that S1 told
complainant to stop working for Petersburg supervisors, and that S1
removed complainant's collateral Safety Officer duties and ordered him
to cease communication with the Regional Safety Officer. S1 stated that
he informed complainant "to stay away from conducting safety inspections
of the OMNI Building because the ground underneath it was contaminated,
and employees complained of odors seeping into the building that was
believed to make them ill. [Complainant] was not properly trained to
conduct inspections, and I did not want him to jeopardize his health
and safety. It appeared [complainant] only went there to avoid having
to perform his primary duties. I never removed him from collateral
safety duties or ordered him to stop communicating with the Regional
Safety Officer." Moreover, S1 stated that complainant's race, sex and
age were not factors in management's determinations to terminate him
during his probationary period.
The Forest Supervisor (FS), the deciding official to terminate complainant
during his probationary period, stated that he had received reports from
S1 that complainant's performance "was not up to par. Also, I had never
seen him actually working during any of my visits to Petersburg. I am
also aware that [S1] spent time and energy working with [complainant],
in an attempt to bring his performance up to an acceptable level.
He made trips to Petersburg personally work with him but [complainant]
never performed as expected." Furthermore, FS stated that he did not
discriminate against complainant based on his race, sex and age.
The Employee Relations Administrator (E1) stated that she prepared
complainant's termination letter and "educated management as whether
or not [complainant] met the requirements for continued employment with
the Agency." E1 stated that management determined that complainant did
not meet the agency's need for continued employment and that employees
at the Petersburg Office "had difficulties meshing with him and that
members of the general public complained about his attitude and demeanor."
E1 further stated that "the probationary period provides an opportunity to
evaluate an applicant's potential for continued employment. Managers have
an obligation to the agency to ensure only the best qualified applications
are selected for retention. As there are no specific criteria, decisions
are based primarily upon managerial knowledge of the agency's needs."
On appeal, complainant argues that the AJ erred in issuing a summary
judgment because there are material facts at issue. Specifically,
complainant argues that the AJ did not look at the report of investigation
(ROI) "Exhibit 17 pages 57 through 68 which are the Performance Appraisal
and Progress Review documents and the Notice of Termination Action,
ROI Exhibit 19 pages 81 and 82 and compare the charges on each document
and question the obvious inconsistency."
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Complainant has offered no persuasive arguments on appeal regarding the
AJ's decision to issue a decision without a hearing, or regarding the AJ's
findings on the merits. Contrary to complainant's appellate argument,
the Commission discerns nothing within the report of investigation that
reflects improprieties with the AJ's determination to issue a decision
without a hearing, or with the ultimate finding of no 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 order, because the Administrative Judge's issuance of a decision
without a hearing was appropriate and a preponderance of the record
evidence does not establish that unlawful 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
October 27, 2009
__________________
Date
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0120092750
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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