0120091530
11-29-2010
Veronica M. Sanders, Complainant, v. Hilda L. Solis, Secretary, Department of Labor (Bureau of Labor Statistics), Agency.
Veronica M. Sanders,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor
(Bureau of Labor Statistics),
Agency.
Appeal No. 01200915301
Agency No. 07-11-115
DECISION
On December 29, 2008, Complainant filed a timely appeal from the Agency's November 29, 2008, final agency decision (FAD) 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts this appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's FAD.
ISSUE PRESENTED
The issue presented in this appeal is whether the Agency correctly determined that Complainant failed to demonstrate that the Agency discriminated against her based on race and age when she was terminated during her probationary period.
BACKGROUND
On August 11, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American) and age (47) when: on June 1, 2007, the Agency terminated her employment (during the probationary period) for failure to demonstrate satisfactory performance.2 Following an investigation and release of the Report of Investigation (ROI) on September 30, 2008, Complainant requested a FAD from the Agency. The Agency issued the FAD, finding that it did not discriminate against Complainant when it terminated her.
Following selection for the position, on August 20, 2006, Complainant began work at the Bureau of Labor Statistics (BLS)'s Office of Technology and Survey Processing as an Information Technology (IT) Specialist, GS-2210-9. The Vacancy Announcement (VA) for the position stated specifically that the position required "knowledge of and skills in programming Visual Basic (VB) or VB.NET." In response to this specific requirement, Complainant maintained that she held a Masters' Degree in Information Technology, had taught VB 6.0 at the college level, that she had earned several Microsoft certifications for VB.NET,3 and that she had familiarity with VB and VB.NET.4 In a letter dated June 1, 2007, Complainant's supervisor (S1) terminated her from her position as of that date, because "she failed to demonstrate satisfactory performance" and "failed to demonstrate a level of competency and performance" appropriate to the job.
The Agency's FAD found that it articulated legitimate, nondiscriminatory reasons for its actions and that the analysis should proceed to the ultimate question of whether Complainant demonstrated pretext. The Agency explained that it terminated Complainant because of her inability to meet the requirements of the position. It rejected Complainant's contention that she did not receive training on VB.NET 2005, the version used by the Agency, and that she was conversant with VB.NET 2003.5 The Agency concluded that Complainant failed to show that its reason--her poor performance--was a pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant filed an appeal brief asserting, among other things, that the Agency's explanation for her removal belies S1's performance appraisal rating of 'effective' on December 6, 2007, and the Agency's failure to meet its obligation to provide counseling, assistance, and training to its employees. She contends that she established a prima facie case; that the termination action demonstrated discrimination, because it was not based on her performance; that she did not receive training and counseling, and the Agency's reasons for her termination were illegitimate; and that the Agency was obligated to provide training and cannot rely on budgetary reasons to deny it. As to her performance, she asserts that she was assigned to work in VB.NET 2005, but had familiarity with VB.NET 2003 only, and, when she requested training in VB.NET 2005, S1 told her that "Anyone with a college degree can get a book and train themselves."
In its brief, the Agency asserted that the record and applicable legal precedent supported the FAD. In response to Complainant's argument that her December 2006 rating and a lack of training demonstrated that the Agency's reasons were pretext, it noted that S1 had stated that (i) Complainant did not receive programming assignments during her first three months, and he could not rate those skills in December 2006; (ii) she failed to complete her first assignment in a week as expected, even after the revision and simplification she requested; (iii) when she finished the assignment several months later, the project manager rejected it as useless, incorrect, and of no value to the team's project; and (iv) the 2005 version of VB was little-changed from 2003 and could easily be learned with available on-line training or publications.
ANALYSIS AND FINDINGS
The standard of review in rendering this appellate decision is de novo, i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999).
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
For purposes of analysis, we will assume that Complainant established prima facie cases of race and age discrimination. The record indicates, however, that the Agency articulated legitimate, nondiscriminatory reasons for her termination. In the letter of June 1, 2007, S1 stated that Complainant had not demonstrated a level of competency and performance appropriate to the job; that Complainant had not "exhibited the ability to effectively perform [her] assigned functions;" that, "despite weekly performance meetings with [S1] and close technological supervision from an experienced VB.NET programmer, [Complainant's] work had not improved;" that "[S1] no longer believed that Complainant's "skills are aligned to the position for which [she was] hired (VB.net programming):" that, even when her "assignments were simplified and the due dates...extended," she failed to complete them in a reasonable time period or in a form that was useful to the project; and that Complainant demonstrated an inability to comprehend her assignment and complete a simple programming job and to do so with respect to the importance of meeting deadlines for office deliverables.
Complainant must demonstrate that the agency's reasons for its actions were not its true reasons and that its actions were influenced by legally impermissible criteria, i.e., animus toward her because of her race and sex. A complainant may demonstrate pretext by showing that the reasons offered by an agency are without a factual basis and not the actual motivation for its action. Here, Complainant must provide preponderant and probative evidence in the record showing that the agency's explanations for the adverse actions were false, that they constituted a pretext (or a sham or disguise) for discrimination, and that the decision-maker might reasonably conclude that the Agency unlawfully discriminated against the Complainant. Reeves, 530 U.S. 133 (2000).
In considering the arguments in Complainant's appellate brief, we simply do not find evidence of pretext here. As to the matters she raised on appeal, regarding her December 2006 evaluation and her lack of training and counseling, we find that the Agency explained its position and submitted verified proof in support of its response. According to the Agency, the reason Complainant received a rating of effective, in December 2006, was because she had not been given any programming assignments during her first three months, and S1 could not rate her on those skills. Moreover, with respect to training and counseling, S1 indicated that he held weekly performance meetings with her and that she was provided close technological supervision from an experienced VB.NET programmer. Viewing this matter as a whole, we cannot conclude that the Agency discriminated against Complainant based on her race of age when it terminated her on June 1, 2007. Complainant provided no evidence to support her contention that the Agency's actions were based on discrimination.
CONCLUSION
After a review of the record in its entirety and consideration of all statements submitted on appeal, including those not specifically addressed, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's FAD, because the preponderance of the evidence of record does not establish that discrimination occurred.
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
__11/29/10________________
Date
1 The Commission mistakenly docketed this appeal as EEOC Request No. 0520090129. On March 3, 2009, we administratively closed EEOC Request No. 0520090129, and opened the present appeal number.
2 On September 27, 2007, the Agency dismissed Complainant's complaint. On appeal, the Commission affirmed dismissal of two issues for untimely EEO contact, found that the Agency erroneously dismissed the termination issue, and remanded the termination issue to the Agency for processing. EEOC Appeal No. 0120080373.
3 Complainant stated that she held certification from Microsoft (MS) as a Certified Professional Developer, Certified Application Developer, and a Certified Solutions Developer.
4 Visual Basic (VB) is a programming language from Microsoft. See www.wikipedia.org/visual basic.
5 It is not clear that Complainant asked for training on VB 2005. The record shows no requests until March 2007 for sessions unrelated to VB.
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0120091530
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091530