0120100309
06-15-2012
Wilma Vialpando, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Wilma Vialpando,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120100309
Agency No. FS-2006-02641
DECISION
On September 2, 2009, Complainant filed an appeal from the Agency's July 27, 2009, 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.; and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative Officer, GS-0341-13, at the National Office, Job Corps, USDA Forest Service facility in Lakewood, Colorado. On November 17, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Hispanic),1 national origin (Hispanic), sex (female), age (59), and reprisal for prior protected EEO activity when:
1. her duties continue to be diminished, including the erosion of the positions she supervises; and
2. a team building session held August 15-16, 2006, was used by management and her colleagues as a forum to openly harass and embarrass her.
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 (FAD) pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency found that Complainant failed to demonstrate that she was discriminated against as alleged. The Agency determined that, even if Complainant could establish a prima facie case, management had proffered legitimate, nondiscriminatory reasons for its actions. In response to claim 1, the Deputy Director (DD) provided affidavit testimony that he changed the number of people Complainant supervised when he assumed his role as Acting Director in May 2006, because under the Former Director (FD), Complainant was effectively performing the duties of the Deputy Director. The DD wanted to restore the traditional roles and duties of Complainant's position as Administrative Officer and of the Deputy Director. DD further stated that he made his decision to promote efficiency and because this was the organizational model he had used in the past. Further, the DD and the Deputy Chief for Business Operations (DCBO) testified that they removed other positions from Complainant's supervision as part of a national, Agency-wide restructuring of the Human Resources and Budget and Finance staff, and a relocation and centralization of that staff to a Service Center in Albuquerque, New Mexico. DD and DCBO stated that they did so to make the program more efficient and consistent, and to address concerns about the manner in which previous Job Corps management had handled Department of Labor (DOL) funds.
In response to claim 2, the DD, DCBO, and Director of Senior, Youth and Volunteer Programs (DSYVP) provided affidavit testimony that the purpose of the August 15-16, 2006, team building session was to bring the Field Office together to work more cohesively, to address office discord, and to discuss problems and solutions to issues arising from transition in the unit. DD stated that the purpose of the session was to eliminate any hostile work environment issues, and that Complainant's race, national origin, sex, age, and prior EEO activity played no part in the decision to hold the session. Further, the Agency found that all witnesses interviewed testified that they understood the purpose of the team building session was to bring the group of people who work in the Denver office together and to try to create better working relationships among them.
Having determined that management provided legitimate and nondiscriminatory reasons for its actions, the Agency found further that Complainant failed to offer pretext because she elected not to provide a rebuttal statement. As a result, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 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").
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 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to claim 1, the record reveals that both DD and DCBO testified to an Agency-wide structural re-organization and a desire to improve operational efficiency and the handling of DOL funds within the Job Corps. As a result, the DD and DCBO moved a Budget Analyst, who previously reported to Complainant, to a centralized service facility in New Mexico. In addition, the DD restored the traditional duties of the Administrative Officer and the Deputy Director. Although these changes did eliminate some of Complainant's supervisory duties, we find no persuasive evidence that the DD and DCBO actions were anything other than a broad plan to make the Agency more centralized and efficient.
With regard to claim 2, the record reflects that that the purpose of the August 15-16, 2006, team building session was to attempt to foster organizational cohesion and to create a better working relationship within the Job Corps Field Office staff in Denver, Colorado. The DD testified to requesting the team building session to address a history of office discord and bring the Field Office together. Similarly, the DSYVP stated that the Job Corps unit in the Denver office was in transition, and that the Washington office had received reports of dissension and animosities in the office. The DCBO stated that the purpose of the team building session was to deal with serious morale and employee issues occurring throughout Job Corps. We find, therefore, that Complainant failed to establish that Agency management had a discriminatory purpose when organizing the team building session.
Because we find that the Agency articulated legitimate, nondiscriminatory reasons for reducing Complainant's supervisory duties and holding a team building session, the burden now shifts to Complainant to demonstrate that the Agency's proffered reasons were a pretext for discrimination. The record reveals that Complainant merely contends that she was discriminated against as alleged and fails to specifically address the Agency's proffered reasons. Further, we find that nothing in the record demonstrates that the Agency's reasons are not worthy of credence. Accordingly, we find that Complainant has failed to demonstrate that the Agency's explanations are a pretext for discrimination.
With respect to Complainant's contention that she was subjected to a hostile work environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim that she was subjected to a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that these actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000).
CONCLUSION
After a review of the record in its entirety and the contentions on appeal, including those not specifically addressed herein, it is the decision of the EEOC to AFFIRM the Agency's final decision. We find that Complainant failed to demonstrate that the preponderance of the evidence of record established that discrimination occurred as alleged.
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
__6/15/12________________
Date
1 Although Complainant identified his race as "Hispanic,"the Commission considers the term "Hispanic" to denote a national origin rather than a race.
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01-2010-0309
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100309