Ricky E. Robinson, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 27, 2009
0120092750 (E.E.O.C. Oct. 27, 2009)

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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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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