0120082117
01-24-2013
Shavon M. Hannah, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.
Shavon M. Hannah,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.
Appeal No. 0120082117
Agency No. FSA-2007-00430
DECISION
Complainant filed an appeal from the Agency's 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented on appeal is whether Complainant established that the Agency's proffered explanations for its actions were pretext to mask discrimination on the basis of race.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Farm Loan Officer Trainee (FLOT), GS-9, at the Agency's office in New Castle, Kentucky. Report of Investigation (ROI), at 1. Complainant began her employment with the Agency on March 6, 2005. Id. at 4. The Agency hired Complainant into the Career Intern Program, which subjected her to a two-year probationary period. Complainant's FLOT position required a two-year training program. Id. The first year generally consists of formal training where each trainee is required to pass four module tests and one comprehensive test at the end. Id. at 6. During the second year, each FLOT is required to independently prepare loan dockets for submission. Id. This included meeting with customers and developing a financial plan containing an evaluation of farming operations. Id. at 10. Each trainee can submit up to ten loan dockets but must submit five with a passing score of at least 90 percent. Id. at 6.
Complainant began her training at the Agency's Harrison County facility and was later transferred to the Agency's New Castle facility. Id. at 5. The Farm Loan Manager kept Complainant at the Harrison County facility three months past the normal one-year requirement because Complainant reportedly made numerous errors on practice loan dockets. Id. at 12. After completing her training at the Harrison County facility, Complainant submitted five loan dockets with percentage scores of 80, 35, 30, 28, and 11, all lower than the 90 percent needed to pass. Id. at 8. On March 2, 2007, the Agency terminated Complainant from employment, deciding not to retain her after the end of her probationary period. Id. at 4. The Agency terminated Complainant based on unacceptable performance.
On May 11, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when on March 2, 2007, she was terminated from her position as a Farm Loan Officer Trainee (FLOT), in New Castle, Kentucky. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Specifically, the Agency found that Complainant failed to establish a prima facie case of discrimination based on race, finding that she failed to establish an inference of discrimination. The Agency noted that, as part of her training, Complainant and other trainees needed to receive a passing score of at least 90 percent on five loan dockets. The Agency noted that Complainant received percentage scores of 80, 35, 30, 28, and 11. The Agency noted that Complainant's scores continued to decline, even after she received extensive feedback. The Agency further found that Complainant failed to show that similarly-situated individuals not of her protected class were treated more favorably. The Agency noted that Complainant failed to identify any other probationary employees who were treated more favorably than she was. The Agency noted that Complainant was terminated as a probationary employee and that the two employees indentified by her as comparators were not in probationary status. The Agency further found that it articulated legitimate, nondiscriminatory reasons for its actions. The Agency noted that Complainant did not complete the requisite training program, failing to submit five passing loan dockets.
The Agency also found that Complainant failed to establish that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination. The Agency found no evidence showing that it failed to give Complainant a fair chance to submit more loan dockets. The Agency noted that Complainant was required to stay at the Harrison County training site for more than a year because she had difficulty passing the program area tests and the comprehensive test. The Agency noted that Complainant took more than 30 days to complete four loan dockets and 90 days to submit the last docket. The Agency noted that Complainant's loan dockets contained numerous errors.
CONTENTIONS ON APPEAL
On Appeal, Complainant contends that she was not warned of any deficiencies in her work or that she was flunking her position. Complainant contends that the Acting Director failed to consider the fact that the docket scores used to compare her performance with Caucasian employees dealt with different scenarios. Complainant contends that Caucasian trainees were not subjected to the same requirements that she was. Complainant contends that, from the beginning, management officials made it clear that she possessed no hands-on agricultural experience. Complainant contends that she was improperly trained for her position, and believes that Caucasian employees were treated more favorably than she was.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case with respect to Complainant's claims, however, because the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 Prods., Inc., 530 U.S. 133, 148 (2000); St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, EEOC Request No. 05950842; Pavelka v. Pep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, that Complainant's performance during her probationary period was less than satisfactory. ROI, at 213-214. The Farm Loan Chief (FLC) noted that Complainant excessively used her personal cell phone, fell asleep on the job, and failed to complete assignments in a timely manner. Id. The FLC noted further noted:
Of the three dockets [Complainant] submitted for loan approval, all have taken her over 30 days to complete, which is way too long. Two of the three were guaranteed loans that only require a review and commendation of her credit decision. We have continually emphasized to [Complainant] the need to work within our application processing time frames established by the National Office.
Id.
The FLC also noted that Complainant had to take an area test three times before passing, and failed two of the three sections of the comprehensive test. The FLC also noted that Complainant submitted loan dockets for approval which did not meet the credit quality score of 90 percent necessary to pass. The FLC noted that "two of the three dockets were guaranteed applications which are the easiest work." Id.
Complainant now bears the burden of proving, by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this directly by showing that the Agency's preferred explanation is unworthy of credence. Burdine, 450 U.S. at 256. In an attempt to show pretext, Complainant contends that two Caucasian Farm Loan Officer Trainees also failed to get the required 90 percent score on their loan dockets, but were not terminated as she was. Complainant contends that she was not able to begin submitting any dockets until the end of 2006 because she was forced to stay at the training site in Harrison County for more than one year. Complainant contends that she had less than six months to submit dockets, while her peers had twelve months to submit their dockets. Complainant contends that she was not given a fair chance to submit ten dockets in an effort to get passing scores. Complainant contends that a former Agency employee purposely gave her misguidance on two of the loan dockets that she submitted.
Notwithstanding Complainant's contentions to the contrary, we can find no evidence of pretext here. While Complainant points to two Caucasian employees who were not terminated for receiving less than 90 percent, the record reflects that they were not in probationary status as Complainant was. ROI, at 7. We note that agencies have greater discretion to remove an employee during the employee's probationary period than they do in removing a career employee. See Deane, Jr. v. U.S. Dep't of Interior, EEOC Appeal No. 0120093195 (June 17, 2011) (citing Pittman v. U.S. Postal Serv, EEOC Appeal No. 01840334 (Apr. 4, 1986)). The record does reflect that Complainant was having difficulties performing the duties of her position. ROI, at 5. But we can find no evidence in the record that would indicate that the Agency was motivated by discriminatory animus towards Complainant's race. Therefore, we find that Complainant has failed to establish that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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 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), 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
January 24, 2013
Date
2
0120082117
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120082117