0120101617
08-12-2010
Laveta Lutomski, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Laveta Lutomski,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120101617
Agency No. 2009-22603-FAA-05
DECISION
Complainant filed an appeal from the Agency's January 28, 2010 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Computer Specialist at the Agency's Monroney Aeronautical Center facility in Oklahoma City, OK. On April 22, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (67) and reprisal for prior protected EEO activity, when:
a. Since approximately January 30, 2009 and continuing, Complainant has been assigned manual and degrading job duties not commensurate with her position of record as a computer programmer;
b. On approximately January 30, 2009, Complainant's tour of duty was changed from a four day work week to a five day work week;
c. Complainant has been denied proper computer training to effectively perform her duties as a computer programmer.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice, dated October 13, 2009, 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)1, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, (Ag Decision) the Agency found that Complainant failed to establish a prima facie case of discrimination based on age or reprisal. Specifically, the Agency found that Complainant's prior EEO activity occurred some 25 years prior to the events in the current complaint. The Agency concluded that this activity was too remote in time to serve as a basis for Complainant's claims based on reprisal. Ag Decision at 8.
With respect to Complainant's claim that she was discriminated against based on age, the Agency found that Complainant failed to identify any similarly situated employees, not in Complainant's protected class that received preferential treatment. To the contrary, the Agency observed that three of Complainant's co-workers, all substantially younger than Complainant, provided statements that they were assigned clerical and custodial tasks similar to those Complainant; and that they were required to request training in the same manner that Complainant requested training. Id. Further, the Agency found that Complainant presented no evidence that any of the Agency's decisions were motivated by consideration of Complainant's age. Rather, the Agency found that Complainant's tour of duty (claim 3) was changed by her supervisors to a five-day week based on the level of supervision and assistance that Complainant required to perform her job successfully. Id.
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
In the instant case, we concur with the Agency that Complainant failed to establish that more likely than not that Complainant's age or prior EEO activity played any role in the Agency's actions described in Complainant's complaint. Specifically, we concur with the Agency that Complainant's prior EEO activity occurred too long ago to serve as a basis for Complainant's complaint based on reprisal. We further find that Complainant did not show that younger employees were treated any better than she was with respect to her tour of duty, training or assigned tasks. We consider the records detailing the training that Complainant received and note the single occasion, as identified by the Agency, when Complainant's request for training was denied. We further note that Complainant failed to identify other employees, younger than Complainant, whose tour of duty was not changed as Complainant's tour was changed, when performance considerations warranted such change. We consider that on appeal, Complainant disputes the evidence obtained during the investigation of the complaint. Complainant's March 31, 2010 Response To The Agency's Final Decision To Dismiss Complaint, 1, 6. We find, however, that Complainant has not produced any evidence in support of her claim that her age or reprisal motivated the Agency's actions in any manner.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
August 12, 2010
__________________
Date
1 The record reveals that Complainant requested a hearing by letter to the agency dated December 17, 2009.
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0120101617
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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