Vanskie D. Elder, Complainant,v.Steven C. Preston, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionAug 27, 2009
0120081340 (E.E.O.C. Aug. 27, 2009)

0120081340

08-27-2009

Vanskie D. Elder, Complainant, v. Steven C. Preston, Administrator, Small Business Administration, Agency.


Vanskie D. Elder,

Complainant,

v.

Steven C. Preston,

Administrator,

Small Business Administration,

Agency.

Appeal No. 0120081340

Agency No. 09-06-035

DECISION

On January 22, 2008, complainant filed an appeal from the agency's

December 17, 2007 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., 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. The appeal is deemed timely and is accepted

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission AFFIRMS the agency's final decision.

ISSUE PRESENTED

Whether the final agency decision properly concluded that the agency

did not subject complainant to discrimination on the bases of race, sex,

age, disability, and in reprisal for prior EEO activity when it failed

to renew his temporary appointment on April 28, 2006.

BACKGROUND

The record reveals that on October 10, 2005, the agency hired complainant

as a GS-09 paralegal specialist at the Office of Disaster Assistance

Loan Processing and Distribution Center in Fort Worth, Texas, pursuant

to an initial 90-day temporary appointment that ended on January

21, 2006. On January 21, 2006, the agency extended complainant's

temporary appointment to April 15, 2006, and on April 15, 2006, the

agency extended complainant's appointment until April 28, 2006. In his

paralegal specialist position, complainant assisted with closing disaster

loans made by the agency because of Hurricanes Rita and Katrina.

On April 21, 2006, complainant's team leader reassigned complainant

to non-loan closing duties. On April 28, 2006, the agency informed

complainant that his temporary appointment with the agency would not

be renewed. In a letter that accompanied the notice of separation,

the agency informed complainant that it would not renew his appointment

because he exceeded his authority by contacting a borrower directly

in writing and telling him to remit an overpayment amount in order

to prevent future debt collection efforts. The letter stated that

the amount requested by complainant had already been deducted at the

original processing of the loan, and complainant's actions were beyond the

authority of the Legal Department in which he worked. The letter further

stated that complainant also failed to follow instructions when he typed

a deed of trust and failed to obtain the opinion of legal counsel before

disbursing secured loans.

In investigative affidavit, the supervising attorney for the Home

Loan Closing and Disbursing Group stated that the agency did not renew

complainant's temporary appointment because of complainant's conduct

and failure to follow office procedures and rules. She stated that

although complainant received the training that all paralegal specialists

received, he did not meet the goals of the Home Loan Closing Group with

respect to customer service, quality service, or the amount of services.

The supervising attorney stated that complainant's work on several files

indicated that he lacked an understanding of agency goals, procedures,

policies, and basic lending requirements. The supervising attorney

stated that complainant exhibited hostile and belligerent behavior when

his work performance was corrected, including raising his voice during

discussions of his work performance with supervisors. The supervising

attorney further stated that complainant did not follow the chain of

command and frequently took actions outside the scope of his authority.

Additionally, the supervising attorney stated that she provided feedback

to complainant on March 14, 2006 regarding his duty to answer borrowers'

calls, and complainant's team leader counseled complainant consistently

regarding his work performance. She stated that complainant was not able

to meet his production goals or successfully multi-task at the level

required by the disaster program. "This inability to meet production

goals and customer service goals often resulted in [complainant] attacking

the goals rather than concentrating on ways to better his performance,"

the supervising attorney stated. Exhibit 11, p. 13.

Complainant's team leader stated that although complainant knew that he

was required to obtain an attorney opinion before making a disbursement,

he disbursed funds without an attorney opinion on more than one occasion.

The team leader also stated that complainant created "ad hoc" loan

documents in violation of the agency's standard practice. The team

leader further stated that complainant improperly demanded repayment

from a borrower, which is the responsibility of loan officers, not

legal staff.

The team leader also stated that complainant changed the mail organization

procedure without obtaining supervisory approval and only attained

approximately one fourth of the daily mail review goal. The team

leader further stated that complainant was volatile, blamed the team

leader for not processing a loan promptly, and argued and intimidated

team members.

Complainant's previous team leader stated that he supervised complainant

for one month in late 2005, and he observed that complainant did not

follow agency disbursement policies and procedures, completed a low

number of daily disbursements, and had a backlog of mail. He stated

that he would return a file to complainant with suggestions each time he

reviewed complainant's files, but complainant responded in a defensive,

loud, and abrupt manner.

At the conclusion of the investigation, complainant was provided with a

copy of the report of 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). The decision found that complainant did not

establish a prima facie case of age and disability discrimination and

failed to prove that the agency's articulated reasons for its actions

were pretext for unlawful discrimination.

CONTENTIONS ON APPEAL

On appeal, complainant contends that his complaint should be amended to

include a claim that the agency's actions also violated the Whistleblower

Protection Act. Complainant also alleges that the EEO investigator

failed to pursue evidence related to alleged Whistleblower Protection

Act violations. Complainant further contends that he did not receive

any documented counseling until he received a letter dated April 27,

2006 informing him that his temporary assignment would not be renewed

and an unsigned letter charging him with failure to follow instructions.

Complainant contends that his "abrupt termination" was due in part to

him explaining to borrowers their lawful right to file a congressional

complaint if agency officials failed to respond to borrowers' concerns.

Complainant maintains that he told a borrower that if agency officials

did not respond to the borrower's concerns, he should file a congressional

complaint regarding the matter.

Complainant maintains that he discovered that a borrower had not revealed

that he received funds from the Federal Emergency Management Agency

(FEMA), but the agency's loan modification officer and his team leader

failed to respond to the matter. Complainant maintains that he therefore

notified the borrower that he would not be able to disburse more money

to the borrower because of the potential duplication of benefits.

Complainant contends that the unauthorized demand letter that he sent

to the borrower was "justified and appropriate." The agency requests

that we affirm its final decision.

ANALYSIS AND FINDINGS

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 EEOC Management

Directive 110, 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").

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). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

In this case, we assume arguendo that complainant is an individual with

a disability and established a prima facie case of discrimination.

Nonetheless, we determine that the agency provided legitimate,

non-discriminatory reasons for not extending complainant's appointment,

as detailed above. Complainant contends that he did not receive any

documented counseling until he received a letter dated April 27, 2006

informing him that his temporary assignment would not be renewed and

an unsigned letter charging him with failure to follow instructions.

However, management officials consistently stated that they regularly

verbally counseled complainant regarding his work performance, but

complainant was hostile to any efforts to improve his performance and

conduct.

Complainant also contends that he merely informed borrowers of their

lawful right to file a congressional complaint if agency officials

failed to respond to their concerns. Likewise, complainant contends

that he was justified in demanding that a borrower return money to

the agency. According to the agency, however, complainant's actions

violated the established procedures and policies for handling these

matters. The agency maintained that complainant's actions were not

only outside the scope of his authority but also apparently based on

erroneous assumptions that could have been corrected if complainant had

gone through the proper channels. For instance, what complainant thought

was an overpayment to the borrower was not an overpayment because FEMA

funds given to the borrower had already been considered at the time of

the Small Business Administration's loan approval. Based on the above, we

conclude that the agency reasonably determined that complainant's failure

to abide by established agency procedures and act within the scope of his

authority made him unsuitable for continued employment with the agency.

Consequently, we find that the agency properly found no discrimination

because complainant failed to prove that the agency's explanations were

pretext for unlawful discrimination or reprisal.

Finally, we note that on appeal, complainant contends that the EEO

investigator failed to investigate his whistleblower claims and requests

that his complaint be amended to include his claim that the agency

violated the Whistleblower Protection Act. We note that the Commission

does not have jurisdiction over Whistleblower Protection Act claims.

See Reavill v. Department of the Navy, EEOC Appeal No. 05950174 (July 19,

1996).

CONCLUSION

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 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

08/27/09

____________

Date

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0120081340

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120081340