01A10555
04-16-2002
Judith G. Rittmeister, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Judith G. Rittmeister v. Department of the Navy
01A10555
April 16, 2002
.
Judith G. Rittmeister,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A10555
Agency No. 9762893014
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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 accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the
basis of her age (date of birth: June 4, 1940) when:
(1) she received a performance rating of Minimally Successful for the
period from April 1, 1996, to March 31, 1997; and,
she was denied a within-grade increase (WGI) effective June 22,
1997; and,
S1 made various comments that harassed her;<1> and,
in May 1996, S1 looked through her personnel records and could not find
much training and questioned her college education; and,
in June 1997, when S1 decided she was going to remove complainant from
her Activity because complainant's staff did not like her and would
not work for her.
The record reveals that during the relevant time, complainant was employed
as a Supervisory Recreation Specialist, GS-0188-09, in the agency's
Morale, Welfare and Recreation Department (MWR) at the Naval Station in
Pearl Harbor, Hawaii. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on August 29, 1997. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge (AJ) or alternatively, to receive a final decision
by the agency. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that the following legitimate,
nondiscriminatory reasons existed for all of the challenged actions:
As to the performance rating, complainant was given �Minimally Successful�
(MS) for Factor 2, Supervision, because of her problems with supervision,
and her staff's comments about her. Complainant's staff reported threats,
verbal mistreatment and moodiness by complainant. Complainant did
not adequately fulfill the requirement of making an effort to resolve
conflicts through group communication and staff meetings. Additionally,
complainant shared many of her personal problems with her staff,
which made the environment stressful for her subordinates. It was also
difficult, according to S1, to have discussions with complainant because
she would become angry and upset. S1 felt she had no alternative but to
give complainant this rating since complainant had so many opportunities
to correct her problems, but did not do so.
Complainant was denied a WGI because she received the MS rating and a
WGI cannot be given with an MS rating.
(3) S1 denied making the alleged harassing comments.
(4) S1 stated that she requested a printout of the training record
of the employees she directly supervised, because she had an annual
requirement to submit each employee's training plan. S1 denied ever
asking complainant about college credits, and never said that she wanted
college graduates for positions under complainant's supervision.
The FAD then concluded that complainant failed to establish that these
reasons were pretextual. Specifically, complainant provided nothing other
than her bare assertions, that S1's statements were false. Additionally,
although complainant alleged that several witnesses would support her
allegations, none of them did so. The FAD also concluded that complainant
failed to present any evidence to show that her situation rose to the
level of harassment. Specifically, the incidents were not patterned or
pervasive, and complainant did not show how they were related to her age.
On appeal, complainant, through her attorney, points out that EEOC
previously remanded to the Activity issues two through five which
demonstrates that there was merit to the claims.<2> Additionally,
complainant contends that important witnesses for her were not located
or did not come forward, and that important witnesses changed their
stories during the investigation due to intimidation to keep their jobs
or fear of retribution. Complainant also states that she was denied the
opportunity to be present and question witnesses who were interviewed
during the investigation, and that if she had been given that opportunity,
the testimony would support her claims.
The agency, in its appeal brief, responds that complainant was given
the opportunity to provide names of witnesses who may have relevant
information. Complainant submitted the names of seven additional
witnesses. Two of her witnesses were no longer working for the federal
government, so complainant was asked to arrange their presence during
the investigation. These witnesses did not show up to testify and,
although complainant's attorney said the information would be provided
by June 30, 1999, it was never submitted. Complainant also wanted her
husband to testify, and her attorney was instructed to submit his sworn
testimony by June 30, 1999; this testimony also was never received.
Three of complainant's witnesses did provide testimony and one of the
seven witnesses was not included because the investigator determined
that the individual had no first hand knowledge of the matters at issue.
For these reasons, and reasons stated in the FAD, the agency requests
that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD
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).
Under the ADEA, it is "unlawful for an employer ... to fail or refuse
to hire or to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's
age." 29 U.S.C. � 623(a)(1). When a complainant alleges that he or
she has been disparately treated by the employing agency as a result
of unlawful age discrimination, "liability depends on whether the
protected trait (under the ADEA, age) actually motivated the employer's
decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141
(2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).
"That is, [complainant's] age must have actually played a role in the
employer's decisionmaking process and had a determinative influence on
the outcome." Id.
In disparate treatment cases, where there is an absence of direct
evidence of discrimination, the allocation of burdens and order of
presentation of proof is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973); see also Reeves, 530
U.S. at 142 (applying McDonnell Douglas analysis to ADEA claim). Under
this analytic framework, complainant must first establish a prima
facie case of unlawful age discrimination. We note that it is not
necessary for complainant to rely strictly on comparative evidence in
order to establish an inference of discriminatory motivation necessary
to support a prima facie case. O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor
v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4
(Sept. 18, 1996). However, the ultimate burden of persuading the trier
of fact that the agency intentionally discriminated against complainant
remains at all times with complainant. Reeves, 530 U.S. at 143 (quoting
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Where the agency has articulated
a legitimate, nondiscriminatory reason for the challenged actions, the
factual inquiry can proceed directly to the third step of the McDonnell
Douglas analysis, the ultimate issue of whether complainant has shown by
a preponderance of the evidence that the agency's actions were motivated
by discrimination. U.S. Postal Service Bd. of Governors v. Aikens, 460
U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming, arguendo, that complainant established her prima facie case
of discrimination, the Commission finds, upon review of the record,
that the agency has articulated legitimate, nondiscriminatory reasons
for its actions.<3>
The burden returns to complainant to show that the agency's reasons were
pretext for discrimination. Complainant disputes the reasons given
by S1, and reiterates that S1 often made age-related comments to her.
However, complainant presents no evidence to substantiate her position.
The Commission finds that complainant failed to show, by a preponderance
of the evidence, that the agency's articulated reasons for its actions
were a pretext for age-based discrimination.
Therefore, based on a complete examination of the evidence of record, we
conclude that complainant has not presented sufficient evidence to prove
that the agency's articulated reasons were pretextual, or that her age
actually played a role in the agency's actions and had a determinative
influence on the outcomes. See Reeves, 530 U.S. at 141.
The agency also analyzed the complaint under the theory of harassment.
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) she was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2) the
harassment was based on her membership in a protected class. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). The evidence in the record
is insufficient to support a finding that management's actions towards
complainant were based on her age. In so finding, we note that there is
no evidence of record to substantiate complainant's numerous assertions
that S1 made age-related comments to her. See EEOC Notice No. 915.002
(March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems,
Inc. at 3, 6.
Accordingly, as complainant has failed to carry her burden of proving
that the agency unlawfully discriminated against her or harassed her on
account of her age, we AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 16, 2002
__________________
Date
1 Specifically, complainant contends that
S1 said �I don't like you... I'll get rid of you... I'll replace the
staff with people with college degrees; I haven't decided if I like you,
and when I decide I don't like you I have guns to back me up.�
2 The agency initially dismissed several allegations on January 5,
1998, but complainant subsequently appealed the dismissal, and the
Commission remanded the allegations for further processing. See EEOC
Appeal No. 01982453 (March 10, 1999).
3 Although the FAD did not put forth a legitimate nondiscriminatory
reason for allegation 5, S1 denies, in her affidavit, ever having told
complainant she was going to remove her from the Activity. See ROI,
p. 79.