0120110096
03-04-2011
Shirlee Gleeson, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Shirlee Gleeson,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0120110096
Hearing No. 532200900008X
Agency No. DFAS000722008
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's
appeal from the Agency's September 14, 2010 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.
BACKGROUND
Complainant alleged that the Agency discriminated against her on the
bases of race (African-American) and age (60) when: from October 15,
2007, she was denied training and meaningful work, denied a reassignment;
and subjected to a hostile work environment which culminated in her
removal from Federal employment during her probationary period.
The record reflects that Complainant was hired by the Agency in
October 2007 for the position of Civilian Pay Technician, GS-04S4-07.
On April 22, 2008, Complainant was terminated from her employment during
her probationary period, for using foul language towards co-workers.
Complainant asserted that her first-level supervisor said to her on
the day that she was terminated, "We tried to give you work that was
easy for you and that you could handle." Complainant further asserted
that management thought that she was too old to learn anything new.
Complainant contended that she did not receive the same one-on-one
training that other individuals received after the initial two to three
week training. Complainant further contended that she was never properly
trained, although other co-workers were properly trained. Complainant
denied that she received a verbal warning from her second-level
supervisor on February 29, 2008, for using profanity in the workplace.
Complainant denied ever using profanity in the workplace.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).
On August 27, 2010, the AJ issued a decision finding no discrimination.
In reaching this decision, the AJ determined that even if Complainant
could establish a prima facie case, the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. The Agency stated that
Complainant's termination occurred, not as a result of poor performance,
but because of her behavior towards co-workers. The AJ noted that no
evidence was presented to establish that other probationary employees
were involved in behavior similar to Complainant's and not terminated.
Complainant claimed that she was denied training, while other witnesses
stated that
they provided her additional training; that she was harassed and asked for
a reassignment as a result, but failed to provide credible or sufficient
evidence of harassment based on her age and/or race; she testified that
she was not warned about her use of profanity in the workplace and she
did not use profanity in the workplace, but the credible testimony of
witnesses and documentation in the record clearly state that she did
use profanity towards others; that she was counseled regarding the use
of profanity and subsequently used profanity towards other employees.
The AJ found that Complainant was not a credible witness. She was
difficult during the hearing having to be removed from the hearing on two
occasions, after many warnings, for inappropriate behavior, including
calling the witnesses liars; and in response to a question by her
representative she responded with profanity. The AJ also found that the
Agency's witnesses were credible in their testimony and previous actions.
In conclusion, the AJ found that the events of which Complainant
complains, either individually or collectively fail to rise to the
level of unlawful harassment prohibited by the ADEA or Title VII.
Most importantly, there is no evidence that any of the actions or
decisions of agency management were motivated by unlawful reasons.
Complainant failed to establish that any of management's reasons for its
actions were pretextual or unworthy of belief. Complainant failed to
establish discrimination under either the theory of disparate treatment
or unlawful harassment.
On appeal, Complainant asserts, inter alia, that the AJ improperly "denied
her right to procedural due process" in this matter. She further asserts
that the AJ did not adequately address her claims of harassment.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: "Conduct that is not severe or pervasive enough to create an
objectively hostile work environment - an environment that a reasonable
person would find hostile or abusive - is beyond Title VII's purview."
Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant
must show that: (1) she belongs to a statutorily protected class;
(2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on her statutorily protected class; (4) the
harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, Complainant asserted that based on her statutorily protected
classes, management continuously subjected her to a hostile work
environment. However, we find that Complainant has not shown that
she was subjected to harassment in the form of unwelcome verbal or
physical conduct involving her protected classes, or the harassment
complained of was based on her statutorily protected classes. Further,
Complainant has not shown that the purported harassment had the purpose
or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment.
While Complainant has cited various incidents where agency management
took actions that were either adverse or disruptive to her, we find
that Complainant fails to show that these incidents were as a result of
unlawful discrimination. To the extent Complainant is alleging disparate
treatment with respect to her termination, she has not shown that the
Agency's reasons for terminating her were a pretext for discrimination.
Further, the Commission finds no evidence of either inappropriate action
or misconduct by the AJ in this matter.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final Agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
March 4, 2011
__________________
Date
2
0120110096
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120110096