0120091771
09-04-2009
Vitaly G. Marchenko, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Vitaly G. Marchenko,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091771
Hearing No. 550-2008-00379X
Agency No. ARPOM08FEB0314
DECISION
On March 9, 2009, complainant filed an appeal from an agency final order,
dated January 29, 2009, 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
In August 2007, complainant began working as a provisional Assistant
Professor in the European/Latin American School for the agency's
Defense Foreign Language Institute at the U.S. Army Garrison at the
Presidio in Monterey, California. Prior to the end of his provisional
period, complainant was terminated for failing to meet expectations,
in March 20081. Thereafter, complainant was purportedly denied access
to his personnel file, his requests for copies of student complaints
were ignored, and he did not receive a copy of the SF-50 documenting
his termination.
Believing that the termination and subsequent actions were discriminatory,
complainant contacted the EEO office on February 29, 2008. Informal
efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint based on sex, national
origin, and in reprisal for prior EEO activity.
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). Complainant timely
requested a hearing. Over the complainant's objections, the AJ assigned
to the case granted the agency's September 29, 2008 motion for a decision
without a hearing. On January 6, 2009, the AJ issued a decision finding
no discrimination.
The AJ found that the management officials terminated complainant for
legitimate, non-discriminatory reasons. A few months after complainant
began his position with the agency, complainant received unsatisfactory
ratings in student evaluations. This action caused management to
view complainant's performance with increased scrutiny. Thereafter,
the administration received complaint letters accusing complainant of
making sexist and racist comments during class lectures. Consequently,
complainant was counseled twice by the Department Chair. The Department
Chair also observed complainant in the classroom and concluded that his
competence fell below institutional expectations.
The AJ found that complainant was unable to show that similarly situation
individuals (i.e. probationary teaching staff with similar "red flag"
student evaluations and negative evaluations by the department head)
outside of his protected classes were treated any differently. In fact,
the AJ noted that two other probationary employees (one female, and
neither Russian/Ukrainian) who received "red flags" in their effectiveness
ratings were both counseled and eventually did not have their contracts
renewed. According to the AJ, there was no evidence that "any actions
growing out of complainant's performance shortcomings and unprofessional
conduct were in any way motivated by complainant's sex, national origin
or engagement in EEO activity."
Regarding the agency actions following complainant's termination (the
denied access to his personnel file, requests for student complaints,
and failure to obtain a copy of his SF-50), the AJ similarly found that
there was no evidence that they were discriminatory.
In addition to the claims raised in the formal complainant, on October 6,
2008, complainant attempted to amend his formal complaint to include
the denial of equal pay based on sex. The AJ dismissed the claim
on the grounds of untimely EEO Counselor contact, finding that the
record established that complainant was aware of the claim at the time
he was hired in August 2007. Moreover, the AJ noted that complainant
acknowledged being aware of the claim months before he initiated
counseling and more than a year before raising the issue before the AJ.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, complainant attacks the school's procedures and policies for
failing to adequately empower teachers to address problematic students.
In particular, complainant states that after only two written complaints
from students a teacher's evaluation is lowered, yet there must be up to
seven complaints by different teachers in order to transfer a student.
Complainant believes that some students treat the foreign-born teachers
as second-class citizens. Additionally, complainant reiterates his
belief that his removal was unjustified, stating that he worked during
the winter vacation period, never refused requests to substitute, and
worked long hours.
In response, the agency notes that while complainant "rails against
management's decisions . . . he fails to cite any convincing evidence
to meet his burden of persuasion that the AJ's determination was not
supported by substantial evidence or are clearly erroneous."
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(Providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (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").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
The Commission finds that the AJ properly granted the agency's motion
for a decision without a hearing. On appeal, complainant presents a list
of the agency's "undisputed facts", and argues that they are in dispute.
For example, complainant challenges the agency's statement that he was on
a "temporary" and "probationary" position by stating that "the original
contact was breached." This, however, is not an issue of material fact.
Even if we assume that the contact was breached, it would not affect
the determination as to whether or not complainant's termination was
motivated by discrimination. The Commission agrees that the record does
not contain any genuine issues of material fact.
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). He
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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The instant record establishes that complainant was terminated
for legitimate reasons, including: student evaluations, complaints
submitted to the administration, and observations by the Department
Head of complainant in the classroom. Further, agency officials were
not even required to provide a reason when terminating a temporary
appointment during the trial period, as occurred in complainant's case.
Complainant has failed to show any nexus between his sex, national
origin, or EEO activity, and the agency's actions. During the fact
finding conference, when asked why he believed the actions were based
on his protected classes, complainant simply stated that students made
disrespectful comments and teachers had no authority over them. Moreover,
students were "not given proper instruction on how to treat people of
different national origin[s] with respect." Complainant's statements
are insufficient to meet his burden of persuasion, nor has he pointed
to any evidence of pretext.
Finally, with respect to complainant's attempt to raise the matter of
unequal pay we agree with the AJ's dismissal. On appeal, complainant
provides no reason for his delayed contact nor does he challenge the
assertion that he was well aware of the claim almost a year before
attempting to include it in the instant complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
decision finding no discrimination.
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
September 4, 2009
__________________
Date
1 Complainant was issued a termination notice on February 15, 2008.
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0120091771
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091771