0120092847
11-04-2009
Elizabeth L. Hartley, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Forest Service), Agency.
Elizabeth L. Hartley,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Forest Service),
Agency.
Appeal No. 0120092847
Agency No. FS200500445
DECISION
On June 18, 2009, complainant filed an appeal from the agency's May 14, 2009 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
During the period at issue, complainant worked as an Information Receptionist at the agency's Forest Service facility in Worland, Wyoming. On March 14, 2005, complainant filed the instant EEO complaint. Therein, complainant claimed that she was harassed on the bases of disability (rotator-cuff tear) and age (77) when:
1. in May 2004, she was refused authorization for an eight hour re-certification for Forest Service Protection Officer training in Buffalo, Wyoming;
2. on May 20, 2004, she was informed her that she was no longer authorized to drive government vehicles;
3. on October 18, 2004, she was subjected to supervisory harassment and
disparaging remarks;
4. on October 30, 2004, she was terminated from her term appointment as an Information Receptionist with the Bighorn National Forest; and
5. she was given derogatory job performance reviews (date unspecified).
At the conclusion of the investigation, complainant was provided 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 pursuant to 29 C.F.R. � 1614.110(b), finding no discrimination.1
CONTENTIONS ON APPEAL
Complainant submitted a statement in rebuttal to the agency's explanations for the events at issue herein, culminating in the agency's determination not to renew complainant's term appointment when it expired in October 2004. Complainant reiterates her contention that she was singled out for unfair treatment and offers her explanation for what occurred. The agency did not submit a response.
ANALYSIS AND FINDINGS
To establish a claim of harassment based on disability or age, complainant must prove that she was subjected to a hostile work environment by establishing that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in complainant's position would have found the conduct to be hostile or abusive. The Supreme Court stated that such conduct must be both objectively and subjectively offensive, such that a reasonable person would find it to be hostile or abusive, and that the victim perceived the environment to be hostile and abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). Second, complainant must also prove that the conduct was taken because of a protected basis, i.e. in this case, disability or age. Only if complainant establishes both of those elements, does the question of vicarious liability for supervisory harassment present itself.
Upon a thorough review of the record, the Commission concludes that complainant's harassment claim fails, in part, because she is unable to establish that any of the conduct alleged herein was taken because of age or disability.2 The agency offers a legitimate and nondiscriminatory explanation for its actions, and complainant's rebuttal consists of her beliefs, unsupported by persuasive, objective evidence that could lead a reasonable fact finder to conclude that the agency's explanation was unworthy of belief.
Specifically, the agency denied recertification training because complainant was on a Performance Improvement Plan (PIP); was failing to show improvement at the time the training was offered; and the training was not centrally important to the duties of complainant's position. These facts are undisputed by complainant. Complainant's status on a PIP and her failure to improve establishes that she was having job performance problems that may have involved what complainant experienced as "derogatory" or less than stellar job performance reviews. Complainant claims that before 2003, her performance had been fine. Complainant's response to the specific deficiencies raised is that she was just doing as she was trained. However, the record is replete with evidence that complainant was making errors and failing to follow directions, and her chain of command was unanimously supportive of her supervisor's determination to place her on a PIP. Complainant's failure to improve, combined with her misuse of both a government travel card and a government vehicle, resulted in her termination. Complainant does not deny the misuse although she states that she did not intentionally do anything wrong. Moreover, complainant avers, but without persuasive evidence, that others were not held to the same standards. The record also fails to support complainant's claim that her supervisor treated her poorly and made disparaging remarks, although it does acknowledge there to be tension between them.
The critical question in this case is whether any of the supervisor's actions were tainted by unlawful animus based on complainant's age or disability. Complainant's age and disability is not enough to establish discrimination. Moreover, complainant's subjective disagreement with the agency's assessment of her job performance is also insufficient to establish discrimination. Complainant has not introduced persuasive evidence that either age or disability were motivating factors in the agency's actions. There is simply no evidence to support such a finding. Moreover, the evidence supports the agency's explanations for its actions. Accordingly, we conclude that the agency did not subject complainant to unlawful harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the final agency decision.
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
November 4, 2009
__________________
Date
1 The agency took four years to issue its final decision which reflects poorly on the agency's commitment to equal opportunity.
2 The Commission presumes, for purposes of analysis only and without so finding, that complainant is an individual with a disability.
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0120092847
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013