Richard E. Campney, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionApr 24, 2000
01986172 (E.E.O.C. Apr. 24, 2000)

01986172

04-24-2000

Richard E. Campney, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Richard E. Campney v. Department of Agriculture

01986172

April 24, 2000

Richard E. Campney, )

Complainant, )

)

v. ) Appeal No. 01986172

) Agency No. 921118

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

______________________________)

DECISION

Richard E. Campney (complainant) timely initiated an appeal to the Equal

Employment Opportunity Commission (EEOC) from the final decision of the

agency concerning complainant's claim that the agency violated the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq. The appeal is accepted in accordance with 64 Fed.Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).<1>

The issue on appeal is whether the agency discriminated against

complainant on the basis of his age (DOB: 4/7/34) when, on July 11,

1992, he was terminated from his position of Assistant County Supervisor,

GS-475-7, during his probationary period.

At the time of the claimed discrimination, complainant worked for the

agency as an Assistant County Supervisor, GS-475-7, in the Farmers Home

Administration, State of Iowa. Prior to his termination, he had been

a probationary employee for eleven months and seventeen days.

Complainant filed a formal EEO complaint raising the issue stated above

and the complaint was investigated. Thereafter, the agency issued a final

agency decision (FAD) which found no discrimination. Complainant now

appeals the FAD but submits no specific contentions on appeal.

The agency found that complainant established a prima facie case of

age discrimination in that he is over forty (40) years of age, was

terminated from employment during his probationary period, and similarly

situated employees, under the age of 40, were not terminated during

their probationary periods. The agency also found that it articulated a

legitimate, nondiscriminatory reason for its termination of complainant,

that complainant was not meeting the requirements of his position. The

agency stated that complainant had specific weaknesses in the areas of

productivity, quality of work, inability to retain instruction well,

excessive talking and visiting with borrowers, and a high error rate in

his work.

The agency also concluded that complainant failed to establish pretext.

The agency noted that complainant was provided with two different work

environments to improve his performance but that the same types of

problems were noted by agency officials at both work sites. The agency

also stated that all three of complainant's first-line supervisors

expressed the same concerns with complainant's performance. According to

the agency, complainant introduced no evidence which adequately rebutted

the agency's reasons for terminating him.

Complainant's complaint constitutes a claim of disparate treatment and

the agency analyzed it under the three-tiered analytical framework

outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas

Dept. of Community Affairs v. Burdine, 450 U.S.248, 253-256 (1981);

Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).

Applying these legal standards, the Commission finds that the agency

correctly concluded that complainant failed to prove, by a preponderance

of the evidence, that he was discriminated against based on his age.

While complainant claimed, rather generally, that his performance was

satisfactory, he provided no specific evidence to rebut his superiors'

testimony regarding his productivity, the quality of his work, and

the disruptive nature of his behavior. Moreover, we note that five

of complainant's co-workers provided statements that complainant's

behavior was disruptive and that his conduct with borrowers was often

inappropriate. Complainant provided no evidence which adequately rebuts

these statements. Finally, we observe that the agency gave complainant

several specific opportunities to improve his performance during the

probationary period. Accordingly, after carefully considering the record,

we find that complainant failed to prove that he was discriminated

against based on his age.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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 (Z1199)

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:

April 24, 2000

DATE Carlton M. Hadden, Acting Director,

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect, These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed.Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.