0120064651
08-08-2008
Judith A. Hamilton, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Judith A. Hamilton,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200646511
Agency No. ARTACOM04JUN0001
DECISION
On August 8, 2006, complainant filed an appeal from the agency's August 1,
2006 final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of 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 pursuant to 29
C.F.R. � 1614.405(a).
During the period at issue, complainant worked as a Probationary
Technical Writer (GS-1083-09) in the Bradley Mobility Group at the Tank
and Automotive Command in Warren, Michigan. The record reflects that
complainant was hired on September 22, 2003. A co-worker (CW1) was
assigned to train complainant with regard to her duties in the position.
Complainant contends that CW1, age 62, subjected her to numerous age-based
statements during her training. These statements included comments that
complainant was too old, her skills were too old, she was spoken to in a
demeaning manner and she was not trained for the position. On October 17,
2003, CW1 sent an e-mail to complainant outlining several exercises that
she could complete at her leisure; however complainant contends that CW1
was keeping track of how long it took her to complete the assignments. On
April 26, 2004, complainant's supervisor (S1) and second line supervisor
(S2) held a counseling session with complainant in which she was informed
that she failed to meet the performance standards of the position.
In addition, complainant was informed that she had poor computer skills;
difficulty retaining information; and that tasks had to be explained
several times and still were not completed properly. On June 10, 2004,
complainant received a letter of discharge, effective June 13, 2004,
terminating her employment during complainant's probationary period.
On August 6, 2004, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of age (54) when:
1. she was subjected to harassment by a co-worker assigned to train her;
and
2. she was terminated during her probationary period.2
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). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b) concluding that complainant proved that she was
subjected to discrimination as alleged.
In its FAD, the agency found that complainant failed to establish
a prima facie case of age discrimination because she failed to show
that similarly situated individuals outside of her protected class were
treated differently than her. Further, the agency found that complainant
failed to prove that but for her age, she would not have been terminated
since CW1, age 62, and S1, age 46, were close to complainant in age.
The agency also found that assuming complainant established a prima facie
case of age discrimination, it articulated legitimate, nondiscriminatory
reasons for its actions; namely she was terminated because she failed
to perform at an adequate level for the position. The agency found that
complainant failed to establish that the agency's reasons were a pretext
for discrimination since CW1 and S1 were within the protected class.
The agency also found that complainant failed to put forth any evidence
to support her assertions that the agency was motivated by discriminatory
animus. The agency further found that complainant failed to show that
she was subjected to harassment because of her age.
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); EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999).
Regarding claim (1), we note that harassment of an employee that would
not occur but for the employee's race, color, sex, national origin, age,
disability, or religion is unlawful, if it is sufficiently patterned
or pervasive. Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (August 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129,
1138-39 (D.C. Cir. 1985)). A single incident or group of isolated
incidents will not be regarded as discriminatory harassment unless the
conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th
Cir. 1982). Whether the harassment is sufficiently severe to trigger
a violation of Title VII must be determined by looking at all of the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, Inc., 510
U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. Harassment is
actionable only if the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
In order to establish a claim of harassment based on age complainant must
show membership in a protected group, and severe or pervasive harassing
conduct, such that it alters the conditions of her employment, that would
not have occurred except for her membership in that protected group.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993) Henderson
v. City of Dundee, 682 F.2d 897, 903-4 ( 11th Cir. 1982). The harassers'
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant provided affidavit testimony that CW1 harassed her, and
that CW1 stated many times that she did not want to train complainant.
Complainant contended that CW1 did not want to train anyone, did
not have time to train anyone, was reluctant to answer complainant's
questions and would always make some kind of comment. Complainant
stated that instead of simply answering her question, CW1 would make
a demeaning comment or insult her because she did not want to answer.
Complainant stated further that CW1 would always have a remark or tone
of voice or she would make complainant repeat her questions three or
four times. Complainant contends that CW1 asked her why she chose to
work at the agency. When complainant responded that her husband died,
and she had to get back to work, CW1 allegedly asked complainant why she
did not send her sons to work to support her. CW1 also alleged stated
"I don't know why you're here, you're wasting government money."
Complainant also alleged another incident of harassment occurred when CW1
asked her if she had a college degree. When complainant stated she had
an English degree, CW1 allegedly asked if it was an associate degree.
CW1 also purportedly stated that "things have changed since then."
Complainant further stated that CW1 had repeatedly stated that she was
"too old to have this position and to perform these duties."
The record reflects that two of complainant's co-workers believed
that complainant was subjected to age based harassment by CW1, however,
their affidavit testimony provides no details about the incidents or what
specifically about the incidents caused them to believe it the incidents
occurred because of complainant's age. Further, CW1 denied that any of
the conversations occurred as alleged, or that she made any comments
disparaging complainant's age. Complainant herself acknowledged that
CW1 had a hearing impairment; therefore, complainant had to repeat
herself. We find that the record is devoid of any further evidence
to corroborate complainant's allegation that the incidents occurred as
she alleged. Despite our concerns that co-workers indicated that CW1
behaved inappropriately toward complainant, we nevertheless find that
complainant failed to prove that the incidents occurred as she alleged.
Complainant's affidavit testimony regarding the incidents lacks sufficient
specificity and substance to prove by a preponderance of the evidence
that the incidents occurred as she alleged. Accordingly, we find that
complainant failed to prove that she was subjected to unlawful age-based
harassment.
Turning to claim (2), 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).
We find that assuming arguendo that complainant established a prima
facie case of age discrimination, we find that the agency articulated
legitimate, nondiscriminatory reasons for terminating complainant.
Specifically, in its termination letter dated May 7, 2004, S2 provided
that the reason complainant was being terminated was due to her failure
to perform at the level required to meet the standards outlined for her
position during her probationary period.
Because we determine that the agency articulated legitimate,
nondiscriminatory reasons for its action, complainant must establish by a
preponderance of the evidence that the agency's reasons are a pretext for
age discrimination. Complainant provided testimony that she believed that
she was discriminated against based on age "because [the termination] was
all done behind my back. I never had any indication. It just happened."
However, we note that the record reflects that complainant, S1 and S2 met
on April 26, 2004, to discuss her performance issues and complainant was
provided with a description of her duties in December 2003. Complainant
contends that she completed a computer course and was familiar with the
use of computers; however, complainant offers no evidence to show that she
had the requisite computer skills for the position. Further, although
complainant contends that she did not receive adequate training due to
the harassment she purportedly received from CW1, we find the record is
replete with evidence that complainant received instructions from CW1.
Complainant has failed to prove by a preponderance of the evidence that
she was discriminated against as she alleged.
Based on a thorough review of the record and the contentions on appeal,
we affirm the agency's FAD finding that complainant failed to establish
by a preponderance of the evidence that she was harassed or discriminated
against as she alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
__08-08-2008_____
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
We note that the agency accepted the following as complainant's claim of
age discrimination "she was subjected to harassment when the agency was
relentlessly critical of her when her removal was processed," however
we find that the record reflects that complainant alleges both that she
was subjected to harassment and terminated due to her age. As such,
we reframe the claims as stated above.
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0120064651
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064651