0120120886
04-23-2012
Robert F. Ladove,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120120886
Agency No. P-2009-0580
DECISION
Complainant filed a timely appeal from the Agency's October 29, 2011 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the appeal. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Director at the Agency's Marion Federal Prison facility in Marion, Illinois. He was a probationary employee. The record shows that Complainant entered employment on July 6, 2008 and on July 1, 2009, the Agency terminated Complainant's employment during his probationary period.
Complainant initially received a satisfactory evaluation, but the Agency did not conduct another performance evaluation until June 9, 2009. The Agency's articulated reason for the termination was unsatisfactory conduct due to Complainant's failure to follow the Agency's security policies. Although Complainant received training with regard to his responsibilities and specifically on key control, Complainant did not secure his keys and placed his keys on the desk in an unlocked room to which inmates had access. The record does not show that other probationary employees had been treated differently for similar offenses.
On July 25, 2009, Complainant filed his first formal complaint alleging that the Agency discriminated against him on the bases of disability (unspecified), 1 age (65), and reprisal for prior protected EEO activity under both statutes when:
1. On June 9, 2009, the Agency denied Complainant union representation;
2. During 2008, the Agency did not properly evaluate Complainant;
3. On June 9, 2009, Management officials threatened Complainant by telling Complainant that they were recommending his termination.
In his complaint, Complainant identified the most recent discriminatory incident as occurring on June 9, 2009. The Agency terminated Complainant's employment on July 1, 2009.
The Agency accepted the complaint for investigation, but the Agency reframed the accepted issue to be whether the Agency discriminated against Complainant when the Agency terminated Complainant's employment on July 1, 2009.2
In its decision, the Agency found no discrimination. The Agency acknowledged that Complainant's evaluations had been delayed, but the Agency concluded that Complainant was terminated after he failed to follow security protocol.
ANALYSIS
To prevail in a disparate treatment claim such as this, Complainant would have to show that the Agency subjected him to an adverse employment action under circumstances that would support his claim of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). We recognize that the Agency's termination of Complainant just two weeks after his initial EEO contact supports an inference of retaliation.
This prima facie inquiry may be dispensed with in this case, however, since the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-717 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 0595042 (November 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
On appeal, Complainant does not dispute the unsatisfactory conduct charges against him. Instead, Complainant maintains that one management official was always biased against him because the official acknowledged that he considered Complainant to be a "weak candidate when we interviewed him" and "not BOP material." Assuming that to be true, that does not prove that the Agency's stated reason for termination during the probationary period (misconduct when Complainant failed to follow the security protocol) was a pretext for discriminatory animus. In this case, Complainant failed to show that the Agency's stated reason was a pretext for unlawful discrimination.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, we find that the preponderance of the evidence of record does not establish that discrimination occurred.
CONCLUSION
Accordingly, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 (S0610)
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 (Z0610)
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
April 23, 2012
__________________
Date
1 For purposes of this analysis, we assume that Complainant is a qualified individual with a disability, although Complainant stated that he did not wish to pursue a disability claim.
2 Complainant does not challenge the Agency's reframing the allegations as a single claim of retaliation.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120120886
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120886