0120083903
01-14-2009
Gloria Cameron, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Gloria Cameron,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083903
Agency No. 200I-0785-2007101966
Hearing No. 430-2008-00030X
DECISION
Complainant filed an appeal with this Commission from the agency's
August 13, 2008 final order which implemented the decision of an EEOC
Administrative Judge (AJ) which was issued on August 1, 2008.
Complainant alleges that she was subjected to 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.
Specifically, in her formal complaint, complainant, a probationary
employee, alleged that the agency discriminated against her on the
bases of race (Black) national origin (American), sex (female), and age
(53) when: (1) she was subjected to a hostile work environment; and (2)
she learned on February 16, 2007, that she would be terminated from her
position on March 2, 2007.1
In a May 1, 2007 letter, written by complainant after the filing of
her complaint, complainant set forth specific incidents of harassment.
Regarding claim (1) complainant alleged that: (a) the Veterans Canteen
Service (VCS) Chief intentionally let go of a cash register, requiring
complainant to act quickly before the cash register fell to the floor; (b)
complainant's supervisors would occasionally stand behind complainant's
work station monitoring her work; (c) complainant was left alone on the
floor while her supervisors and co-workers would go to the office and talk
behind closed doors; (d) complainant was reassigned, at her own request,
and soon discovered that her co-workers were informing her supervisor of
her every move; (e) complainant's supervisor would continuously ask her
"[D]o you really want to work here?"; (f) complainant asked a co-worker to
stop distracting her, to which she responded "If you stop I will stop,";
and (g) during a staff meeting the VCS Chief stated that there are five
trouble makers and two would surely have to go.
In a June 19, 2007 Partial Dismissal of the complaint, the agency
dismissed claim (1), pursuant to 29 C.F.R. � 1614.107(2) on the grounds
that claim (1) raised a matter that had not been brought to the attention
of an EEO Counselor or was not like or related to a matter that had been
brought to the attention of an EEO Counselor. Alternatively, the agency
dismissed claim (1) on the grounds that it failed to state a claim of
harassment, noting that the incidents complained of were not pervasive
enough to create a hostile work environment.
In her decision finding no discrimination, the AJ found that complainant
had established a prima facie case of age discrimination. The AJ further
found, however, that complainant failed to establish a prima facie case
of discrimination based on race, sex, or national origin because she
failed to identify comparatives who were similarly situated to her and
who were treated differently. Noting that although reprisal was not
an accepted issue, the AJ found that complainant failed to establish
a prima facie case of reprisal because she had not shown that she had
engaged in protected activity. The AJ concluded that the agency had
articulated a legitimate, nondiscriminatory reason for its termination,
noting that the agency terminated complainant because she was unable to
work with various members of management; failed to follow VCS policies and
procedures; talked too much with customers and employees while she was
supposed to be working; had problems getting along with her co-workers;
and that complainant was argumentative and uncooperative. The AJ further
concluded that complainant failed to show that the agency's reasons for
its action were pretextual and unworthy of credence. Regarding dismissed
claim (1), the AJ noted that although it was not accepted by the agency,
she would address the claim of harassment. The AJ found that complainant
failed to establish that any of the conduct that complainant felt was
harassing was based on a prohibited basis.
All post-hearing factual findings by an AJ will be upheld if supported
by substantial evidence in the record. See 29 C.F.R. � 1614.405(a).
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony
so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999).
As an initial matter, the Commission notes that complainant makes no
new arguments on appeal.
Upon review, the Commission finds that the AJ's finding of no
discrimination is based upon substantial evidence. The record discloses
that the agency has articulated legitimate, nondiscriminatory reasons for
terminating complainant and engaging in the alleged acts of harassment.2
Further, complainant has failed to show that the agency's reasons
were mere pretext to hide unlawful discrimination. The Commission
has recognized that the agency has broad discretion to set policies
and carry out personnel decisions, and should not be second-guessed
by the reviewing authority absent evidence of unlawful motivation.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981); Vanek v. Department of the Treasury, EEOC Request No. 05940906
(January 16, 1997). Complainant also failed to establish that she was
subjected to a discriminatorily hostile work environment or that the
alleged incidents were so severe and pervasive so as to have altered
the conditions of her employment. The record does not support a finding
that any of the agency's alleged harassing actions, even assuming they
are true, were motivated by discriminatory animus.
The agency's final order finding no discrimination 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
January 14, 2009
__________________
Date
1 Although complainant listed religion as a basis of discrimination on
her formal complaint, we note that at the hearing complainant indicted
that she was not pursuing religion as a basis of discrimination.
2 Having determined that the agency has articulated legitimate,
nondiscriminatory reasons for its action, the prima facie inquiry may
be dispensed with. 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).
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0120083903
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120083903