0120092249
07-16-2009
Resa M. Hall, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Resa M. Hall,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120092249
Agency No. 08.029
Hearing No. 450-2009-00009X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 20, 2009 final order 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.
In July 2007, complainant was hired as a Customer Service Assistant at
the agency's Military Star Call Center in Dallas, Texas, subject to a
one-year probationary period.
Complainant alleged that the agency discriminated against her on the
bases of age (40) and in reprisal for current EEO activity when:
1. her co-workers and managers looked in her personnel file to find her
age and made comments about her age versus her appearance;
2. her team lead and managers stopped giving her work, told her she was
not doing her job and threatened her;
3. after being transferred, her former manager discussed her situation
with her new manager; and
4. she was separated during her probationary period effective December
13, 2007.
The record reflects that complainant previously worked in the Military
Star Call Center as a contract employee until approximately June 2007.
Following the investigation into her complaint, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On February 25, 2009,
the AJ issued a decision by summary judgment in favor of the agency.
On March 20, 2009, the agency fully implemented the AJ's decision in
its final order.
The AJ found that complainant did not establish a prima facie case of age
and reprisal discrimination. The AJ nevertheless found that the agency
articulated legitimate, nondiscriminatory reasons for its actions which
complainant failed to show were a pretext. The AJ noted in regard to
claim 1, complainant's supervisor (S1) stated that the only documentation
manager and supervisors keep is employees' birthdays "for their birthday
celebrations which does not include the year of birth." S1 further stated
that when she worked in the Fraud Unit "as a temporary 3C before I became
supervisor I was told [complainant] did not look her age but I was never
told how old she was. This was not said in a demeaning manner."
Complainant's second-level supervisor (S2) stated that managers
and supervisors do not keep documents that contain information on
an employee's age or date of birth. S2 further stated that she heard
complainant's co-workers and/or managers made comments about complainant's
age/appearance. Specifically, S2 stated "I heard that she looked very
good."
Regarding claim 2, S1 denied complainant's claim that her team lead
and managers stopped giving her work. S1 stated that complainant "was
transferred to my unit because she was not working out in the 'chat' unit.
After she was transferred to my unit and trained in the duties in my
unit, we never stopped giving her work, up to the point where she was
separated during her probationary period." The Team Manager (TM) stated
that complainant's quantity of work "assigned to her was not decreased,
although her productivity was less than expected."
With respect to complainant's assertion that [TM] threatened her by
stating her days were numbered, and that [TM] would get her on her
production, TM stated "No I did not make this statement to [Complainant]."
S1 stated "I have never heard [TM] say anything like that to anyone."
Regarding claim 3, S1 stated that when she was informed that complainant
was transferring to my unit "they told me she requested the transfer due
to problems with co-workers. I did not understand it to arise to the
level of harassment or hostile environment. Also in her file which was
given to me when she transferred it stated they were moving her earlier
than planned due to her feeling stressed out and felt she should not
have to work under those conditions."
Regarding claim 4, S1 stated that she was the deciding official
to terminate complainant during her probationary period for poor
productivity and refusal to follow established procedures. S1 further
stated that "upper management and I discussed her performance and came
to the conclusion it would be in our best interest to separate her."
Specifically, S1 stated that complainant was "not a good fit for AAFES.
First, [complainant's] productivity was below standard. She also refused
to follow procedure when asked." S1 further stated that complainant did
not make herself available "when the customer would release the call.
She instead spent the time sending personal email. These calls ranged
from 2-5 minutes." S1 stated that during complainant's first month
"given her prior familiarity with AAFES and her repeated training our
systems, her performance was well below our expectations." S1 stated
that she also had concerns with complainant's persistence in keeping a
log of customer's account numbers "after being instructed repeatedly,
and counseled on 29 November 2007. Not only is this insubordination,
it is also a significant breach of customer security, raising the risk of
'identity threat' - theft of our customer's account information."
With respect to complainant's assertion that on or about December 6,
2007, someone from the EEO office called her work area to speak with
her but a named employee (E1) took the call and then informed S1 and
S2 of the call, E1 denied it. Specifically, E1 stated that complainant
"failed to update her contact information. The individual from the EEO
used the default number on file which comes into the Trainer office.
I received the phone call but refused to transfer as [complainant]
was scheduled to be assisting customers by phone at that time. The EEO
individual then identified themselves and requested to leave a message.
I wrote down the information and went directly to [complainant's] desk
and provided the information to her personally." Furthermore, S1 stated
"No. I was unaware of this."
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. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
As an initial matter, we find that complainant, on appeal, has not
provided any persuasive argument regarding the propriety of the AJ's
finding of no discrimination. The Commission determines that the agency
conducted a thorough investigation.
The Commission determines that the AJ's findings of fact are supported
by the substantial evidence in the record and that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that complainant failed to
present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's age or reprisal. Although the
AJ did not specifically address complainant's harassment allegation, we
find that the incidents of harassment identified by complainant were not
sufficiently pervasive or severe to create a hostile work environment.
We discern no basis to disturb the AJ's decision.
Accordingly, the agency's final order implementing the AJ's finding of
no discrimination is therefore 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
July 16, 2009
__________________
Date
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0120092249
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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