0120073291
09-16-2009
Becki S. Ritterman, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Becki S. Ritterman,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120073291
Hearing No. 551-2006-00090X
Agency No. TD-05-2575
DECISION
Complainant filed an appeal from the agency's final action dated August
7, 2007, finding no discrimination with regard to her complaint. In her
complaint, dated September 6, 2005, complainant alleged discrimination
based on age (over 40) and sex (female) when: (1) from January 24 to June
21, 2005, she was subjected to harassment; and (2) On June 21, 2005,
she was terminated during her probationary period from the position of
Contact Representative, GS-0962-05.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On April
19, 2007, the AJ issued a decision, which was received by the agency
on July 12, 2007, without holding a hearing, finding no discrimination.
The agency's final action fully implemented the AJ's decision.
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.
Despite complainant's contentions, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material
fact exists. In this case, the AJ determined that, assuming arguendo
that complainant had established a prima facie case of discrimination,
the agency articulated legitimate, nondiscriminatory reasons for the
alleged actions. The AJ noted that complainant was hired as a Contract
Representative with the agency's Internal Revenue Service's Wage and
Investment Service Center in Portland, Oregon, under a career conditional
appointment, i.e., subject to the successful completion of a one year
probationary period. Complainant's position required her to answer
telephonic inquiries and provide advice on tax laws and regulations.
It appears that complainant was hired in her position in October 2004.
Complainant's supervisor indicated that on April 2, 2005, she issued
complainant a job appraisal indicating her performance was deficient
in the area of customer accuracy. On April 12, 2005, the supervisor
issued complainant a probationary performance letter listing a number of
performance deficiencies. On April 25, 2005, the supervisor informed
complainant that her performance had improved significantly during the
10-day performance period but reminded her that she was required to
continue to maintain an acceptable level of accuracy to maintain her
position. On June 8, 2005, the supervisor issued a second probationary
performance letter to complainant citing a number of her specific
performance deficiencies in May and June 2005. On June 9, 2005, the
supervisor provided complainant's mid-year progress review with a failing
rating on the critical job elements relating to customer accuracy.
On June 21, 2005, complainant's manager, upon recommendation by the
supervisor, issued complainant a notice of termination due to her poor
performance.
Complainant claimed that the agency failed to use an external unbiased
function (National Quality Review) to monitor her calls and also
improperly utilized its complex metric system causing errors in
her ratings. However, the agency indicated that all employees were
monitored the same way, i.e., the call was listened to and notes were
taken and reviewed for accuracy. All reviewed calls were shared with the
employee within 8 hours of the review. Once the employee was placed on
a performance letter the monitoring requirement increases. The agency
stated that at the end of each month, reports were run in order to
determine the employee's customer accuracy rate for all employees.
We note that although the agency's procedures for monitoring and rating
complainant's performance purportedly were unsatisfactory to complainant,
complainant proffers no evidence in the record to show that she, alone,
was subjected to these procedures.
Complainant also disputed the accuracy of her performance deficiencies
identified in her evaluations by the supervisor. Specifically,
complainant claimed that the supervisor, in her April 25, 2005 letter,
stated that her performance rating was 81.5% which constituted a
successful completion of her first probation. She admitted that she
was previously informed that "a rating of 82% would be considered
successful." However, the record clearly indicates that this 81.5%
reflected complainant's performance only from April 12-25, 2005, and
it was clearly 0.5% lower than the required 82%. Complainant failed to
show that her rating was 82% or higher throughout her first probationary
period.
Upon review, we find that the AJ properly determined that the agency
established that complainant was not providing accurate information
to callers and the agency also established that complainant was
not performing within the expectations of the position during her
probationary period. We also agree with the AJ that complainant failed
to rebut the agency's legitimate, nondiscriminatory reasons for the
alleged termination. Also, we agree with the AJ that complainant failed
to establish that her workplace was permeated with hostility as evidenced
by hostile, offensive or ridiculing activity.
Accordingly, the agency's final action is AFFIRMED.
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
9/16/09
__________________
Date
2
0120073291
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013