Vernon M. Fuller, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionAug 21, 2009
0120091888 (E.E.O.C. Aug. 21, 2009)

0120091888

08-21-2009

Vernon M. Fuller, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.


Vernon M. Fuller,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120091888

Agency No. RD-2007-00197

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's January 5, 2009 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. and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq.

During the period at issue, complainant was employed as a Rural

Development Area Director, GS-13, at the agency's Tavares Area Office

(Area Four) in Tavares, Florida.

On January 3, 2006, complainant filed the instant formal complaint.

Therein, complainant alleged that the agency discriminated against him

on the bases of race (African-American), age (over 40), and in reprisal

for prior EEO activity when:

on November 8, 2006, his supervisory issued him a formal Letter of

Reprimand (LOR).

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 on January 5,

2009, pursuant to 29 C.F.R. � 1614.110(b).

In its January 5, 2009 final decision, the agency found no discrimination.

Without addressing the prima facie analysis of complainant's disparate

treatment claim based on race, age and retaliation, the agency found

that management articulated legitimate, nondiscriminatory reasons

for its actions which complainant failed to show were a pretext for

discrimination.

The State Director (SD) stated that on November 8, 2006, he issued

complainant a LOR for failure to follow instructions, negligence in

performing official duties and conduct prejudicial to the best interests

of the service. SD stated that during the 2006 fiscal year, the agency

initiated a new Accountability Plan in Florida and the U.S. Virgin Islands

for monitoring and tracking its annual mission goals and objective which

were to be directly related to a new 5-tier Performance Rating system.

SD further stated that beginning October 2005 up to the date of the

issuance of the LOR, he had numerous meetings and oral counseling

sessions with complainant concerning the implementation of the plans for

his area. SD stated that complainant "became increasingly combative

in this process in part because all of his offices were not meeting

their goals and objectives and it was his responsibility to implement

the consequences indicated in the Accountability Plan. Other issues

stemmed from his dissatisfaction with the new plan and my prerogatives

as State Director. His conduct toward me became argumentative and

eventually uncommunicative." SD stated that in several of complainant's

written memorandums to him were "disrespectful and insubordinate."

SD stated that he made every attempt to assist complainant and correct

the conduct "that was becoming more unprofessional, problematic and

increasingly defiant. Having exhausted the oral counseling and management

meetings, choosing Reprimand was the lowest possible disciplinary

action I could take on each of the specifications. Hopefully, it would

ensure [complainant] understood that his continued conduct would not

be acceptable."

SD stated that he contacted Human Resources after it became apparent

to him that complainant did not respond to the repeated meetings and

oral counseling sessions by correcting his conduct. SD stated that

he and the Human Resources Manager (HR Manager) discussed his State

Director position, complainant's employment and "determined what would

be the most appropriate path based upon the USDA Guide for Disciplinary

Penalties. A Reprimand was the lowest possible form of discipline for

the specifications." SD stated that after the HR Manager prepared

the LOR, he issued it to complainant. Furthermore, SD stated that

complainant's race, age and prior protected activity were not factors

in his determination to issue him a LOR.

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

consideration was a factor in the adverse employment action. See

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. See Texas

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

Once the agency has met its burden, the complainant bears the ultimate

responsibility to persuade the fact finder by a preponderance of the

evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In the instant case, we find that the agency articulated legitimate,

nondiscriminatory reasons for its actions, that were not a pretext for

discrimination.

On appeal, complainant argues, in essence, that the final agency decision

does not reflect sufficient consideration of the factors surrounding the

issues before and after the issuance of the subject Letter of Reprimand.

However, the Commission nonetheless determines that complainant has

provided no persuasive arguments indicating any improprieties in the

agency's findings. After a review of the record in its entirety,

including consideration of all statements 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

August 21, 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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