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.