0120083180
04-01-2010
Brenda J. Lamb, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Brenda J. Lamb,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120083180
Agency No. PHI050119SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 30, 2008, final agency decision (FAD)
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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
On July 27, 2005, complainant contacted an EEO counselor, and, on October
20, 2005, she filed a formal complaint. On December 23, 2005, the agency
accepted the following issue: whether, based on race (African American),
disability (depression, amputated hand), and in reprisal for prior EEO
activity, complainant was subjected to non-sexual harassment when she
was not selected for the Regional Temporary Opportunity Program (RTOP3),
advertised under vacancy announcement OHA-R-TOP/RTOP3 on June 29, 2005.
Following an investigation, complainant did not respond to the agency's
notice of her right to a hearing or final agency decision (FAD).
After the regulatory time frame for election had passed, the agency
issued its FAD, finding that it did not discriminate against complainant.
At the time of these events, since March 1998, complainant worked as
an Administrative Assistant, GS-9 (AA), at the Office of Hearings and
Appeals (OHA), in Morgantown, West Virginia, Region III.1 Complainant's
first-level supervisor was the Office Director (S1), and her second-level
supervisor was the Chief Administrative Law Judge (S2) in Morgantown.
In May 2005, the agency's Region 3 announced the "First Six-Month Office
of Hearings and Appeal Regional Temporary Opportunity Program" designed
as a six-month development assignment onsite with a temporary promotion
to the selectees' next GS-level in order to provide OHA administrative
staff in GS-4 through GS-11 an opportunity for higher-level experience.
Complainant, her co-worker in Morgantown (CW) (Caucasian), also an AA, and
26 others met the basic qualifications for the position and were placed
on the best qualified list (BQL).2 The selecting official, the Regional
Management Officer for Region 3 (retired) (SO), sought recommendations
from the applicants' immediate supervisors. The record contains a
list of the supervisors' recommendation of 21 candidates, of which
seven were "highly recommended," 10 were "recommended," and four were
"not recommended." Complainant was "not recommended," and her co-worker
(CW), also an AA, was "recommended" by S1. The SO chose nine candidates;
complainant was not selected while CW was chosen for the program. 3
As stated in her affidavit in the record, complainant identified herself
as African American, with mental (depression, anxiety, and dysthymia) and
physical (impaired right forearm and carpal tunnel syndrome of the left
hand and wrist) impairments and prior EEO activity.4 She stated that on
June 14, 2005, she applied for RTOP3 and believed she met the criteria
for the position; however, on July 29, 2005, she learned that she had
not been selected and that CW was selected. She contended that she was
"equally or, if based on work history, education and experience, better
qualified" than CW, because she held the AA position for eight years,
she had a higher level of education, and she had 23 years of service with
the federal government. She contended that both S1 and S2 provided poor
recommendations to the SO in reprisal for her prior EEO complaint filed
in July 2004; that they "blackballed" her efforts to obtain other jobs
in the agency; that "racial dynamics played a part," in that few blacks
were employed at the Morgantown office; and that the agency's failure
to provide a reasonable accommodation for her impairments hampered her
performance, and she was not treated with dignity and respect.
In his statement, S1 (Caucasian, no disabilities) stated that he had
been complainant's first-line supervisor since 2001, that he was aware
of her physical impairment, and that he knew she filed a prior EEO
complaint in July 2004, with regard to her requests to provide reasonable
accommodation. At the SO's request, he provided recommendations for both
complainant and CW. He stated that he did not recommend complainant,
maintaining that she performed the AA position successfully, albeit
at a slower pace, but that she did not readily absorb new materials
and instructions and needed assistance to implement new procedures.
For CW, he stated that she easily learns new tasks and carries out new
procedures independently without assistance. As an example, he pointed to
recent training of a new accounting system given to complainant and CW.
Upon return, CW performed and implemented the system in the office
and trained the other clerks, whereas complainant did not demonstrate
an ability to perform the new functions without additional in-house
training and assistance. Both S1 and S2 stated that they have always
treated complainant in a respectful manner.
Because the SO had retired, the Chief Administrative Law Judge (Chief ALJ)
for Region 3 provided answers to the questions from the Investigator.
He affirmed that the SO sought input on the best-qualified list (BQL)
candidates from their immediate supervisors. He also asserted that
factors such as race, impairments, and prior EEO activity were not
considered in the selection process.
In a rebuttal to the statements of others, complainant stated that her
July 2004 complaint was not about denial of a reasonable accommodation, as
she initially stated, but that, instead, she claimed disparate treatment
based on race and disability. Of relevance to the matter before us,
complainant stated her disagreement with S1's characterization of
her learning abilities, and she denied that she acted in a defensive
or hostile manner toward S2. Finally, she again reiterated that her
non-selection was based on reprisal for her prior complaint.
In its FAD, the agency concluded that complainant did not establish
a prima facie case of discrimination on any of the bases she alleged.
Further, the agency stated that, even had she done so, it articulated
legitimate, nondiscriminatory reasons for its actions, and complainant
did not demonstrate pretext in response. In addition, the agency found
that, other than her allegation of non-selection, she offered no example
or evidence of harassment.
CONTENTIONS ON APPEAL
In a letter attached to her appeal, complainant objected to the agency's
contention that she failed to present objective medical evidence of
her disabling conditions. She also asserted that she had proof that
she had been subjected to retaliation and denied equal opportunity in
wages, overtime, awards, and training. She further stated that the SO
visited Morgantown and conducted an audit of her accounts, acting in a
"demeaning and accusatory" manner and concluded that the SO was not
"entirely objective" towards her application.5 The agency asked that
we affirm its FAD, noting that complainant has not provided any new
information.
ANALYSIS AND FINDINGS
Standard of Review
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
As a preliminary matter, we note that, in her formal complaint,
complainant also alleged that based on race, disability, and in
reprisal, she was subjected to harassment when, in 2003 and 2004,
(a) the agency denied her opportunities to work overtime after she
filed her EEO complaint in July 2004; (b) the agency reassigned her
duties to a co-worker in September 2003, limiting her ability to fully
demonstrate her job performance; and (c) she received monetary awards in
the last two years that were not commensurate with her job performance.
On December 23, 2007, the agency dismissed claims (a)-(c) for untimely
contact with an EEO counselor, in that these events occurred more than
45 days prior to her July 27, 2005, contact with a counselor.
The Commission's regulations require that a complainant bring
his/her complaint to the attention of an EEO counselor within 45
days of an alleged discriminatory event or the effective date of an
alleged discriminatory personnel action. 29 C.F.R. �1614.105(a)(1).
The record shows that complainant contacted an EEO counselor more than
45 days following the events in 2003 and 2004, and she did not offer
any explanation or justification for the delay or reason to extend the
time period. See 29 C.F.R. �1614.105(a)(2); 29 C.F.R. �1614.604(c).
Complainant filed a previous EEO complaint in July 2004, suggesting that
she was aware of the 45-day requirement to contact an EEO counselor;
nevertheless, complainant's EEO contact for these three issues was not
timely. 29 C.F.R. �1614.107(a)(2). We find that the agency properly
dismissed allegations (a)-(c).
Claim Based on Disability
The Commission's regulations require that federal agencies not
discriminate against individuals with disabilities and are required
to make reasonable accommodation for the known physical and mental
impairments of qualified individuals with disabilities, unless an agency
can show that reasonable accommodation would cause an undue hardship.
See 29 C.F.R. �� 1630.2(o) and (p).6
Claim Based on Disparate Treatment
Complainant has alleged disparate treatment based on race, disability,
and reprisal. Claims of disparate treatment, such as complainant's,
are examined under the tripartite analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). At the outset, a
complainant must establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration
was a factor in the adverse employment action. McDonnell Douglas, 411
U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once complainant has established a prima facie case, the burden then
shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). Once the agency has done so, the ultimate burden of
persuasion reverts to the complainant to demonstrate by a preponderance of
the evidence that the agency's reason(s) for its action was a pretext for
discrimination. At all times, complainant retains the ultimate burden
of persuasion, and it is his/her obligation to show by preponderant
evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
For analysis of claims claiming disparate treatment based on reprisal,
following the burdens set forth in McDonnell Douglas, supra, a complainant
can establish a prima facie case of reprisal discrimination by showing
that (1) s/he engaged in a prior protected activity; (2) the official
acting on behalf of the agency was aware of the protected activity; (3)
s/he was subjected to adverse treatment by the agency; and (4) a nexus,
or causal connection, exists between the protected activity and the
adverse treatment at issue herein.7 Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (September 25, 2000); Shapiro v. Social
Security Admin., EEOC Request No. 05960403 (December 6, 1996).
For purposes of further analysis of complainant's claims, we assume,
arguendo, without so finding, that complainant is a qualified individual
with a disability, that she is entitled to the protection of the
Rehabilitation Act, and that she established a prima facie case of
disparate treatment discrimination on the bases of race, disability,
and reprisal.
We now turn to consideration of the agency's reasons for its actions.
We note that the agency's burden, while not onerous, must provide
a specific, clear, and individualized explanation for the treatment
accorded the complainant that frames the factual issue "with sufficient
clarity so that [complainant] will have a full and fair opportunity
to demonstrate pretext." See Texas Department of Community Affairs
v. Burdine, supra. The SO, as corroborated by the Chief ALJ, stated
that she sought employees with demonstrated potential to advance through
RTOP3's training curriculum and that she sought recommendations from
the supervisors of the BQL candidates. S1 stated that he recommended
CW as a candidate, believing she would benefit from the Program and
perform at an advanced level, as she showed during her tenure in the
AA position. S1 allowed that complainant performed her current duties
well, but expressed concern that over the course of her employment she
had not demonstrated an ability to quickly and easily learn new tasks and
perform them without "repetitive, hands-on" training. We find that S1
articulated legitimate, nondiscriminatory reasons for his recommendations
and that the SO, relying on S1's recommendations, articulated legitimate,
nondiscriminatory reasons for its decision not to select complainant
and to select CW.
The ultimate burden of persuasion returns to complainant to demonstrate
pretext; that is, she must show that the reasons articulated by the agency
for its actions were not its true and real reasons but were taken in
order to discriminate against her and influenced by legally impermissible
criteria, i.e., complainant's race, disability, or prior EEO activity.
See St. Mary's Honor Center v. Hicks, supra. Complainant contended that
she was better qualified than CW based on her work history and experience
of 23 years of government service, with eight years in the AA position,
and because of her superior level of education. However, complainant did
not show, and the record does not reflect, that education or tenure were
factors in the final selection decisions; instead, the SO's request for
recommendations looked for an evaluation of the candidates' demonstrated
performance and abilities.
The Commission notes that in non-selection cases, pretext may be found
where the complainant's qualifications are demonstrably superior to
the selectee's. See, e.g., Hickman v. Department of Justice (Drug
Enforcement Administration), EEOC Appeal No. 01A11797 (December
20, 2001). While complainant's qualifications are impressive, she
has not established that they are "demonstrably superior" to CW's,
such that complainant should have been selected over CW. Further,
complainant has not submitted evidence to rebut S1's characterization
of her abilities. See, e.g., Carrisosa v. Department of the Air Force,
EEOC Appeal No. 01956886 (December 18, 1997). Accordingly, we find that
complainant has not established pretext.
Harassment8
Complainant has also alleged that she was harassed when she was not
selected for the RTOP3 Program. Harassment based on an individual's
protected status is unlawful. The incidents at issue must have
been "sufficiently severe and pervasive to alter the conditions of
complainant's employment and create an abusive working environment."
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); see also Oncale
v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). An abusive or
hostile working environment exists "when the workplace is permeated with
discriminatory intimidation, ridicule and insult that is sufficiently
severe or pervasive to alter the condition of the victim's employment."
Harris V. Forklift Systems, Inc., supra. An alteration to an employee's
working conditions exists if a tangible, discrete employment action is
taken, e.g., hiring, firing, transfer, promotion, non-selection, or the
agency's actions were sufficiently severe and/or pervasive to create
a hostile work environment. Usually, a single incident or a group of
isolated incidents will not be regarded as discriminatory harassment.
See Frye v. Department of Labor, EEOC Request No. 05950152 (February 8,
1996); Backo v. United States Postal Service, EEOC Request No. 05960227
(June 10, 1996); see Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986).
To establish a prima facie case of hostile work environment harassment,
a complainant must show that (1) s/he belongs to a statutorily protected
class; (2) s/he was subjected to harassment in the form of unwelcome
verbal or physical conduct because of her/his protected class; (3)
the harassment complained of was based on her/his statutorily protected
class; and (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. See 29 C.F.R. � 1604.11; Davis v. Army, EEOC Appeal
Nos. 01A24469, 01A20558 (November 14, 2003).
We find that complainant has not shown, through probative evidence, that
her non-selection created a hostile work environment so permeated with
discriminatory intimidation, ridicule and insult that was sufficiently
severe or pervasive to alter the condition of the victim's employment
and/or had the purpose or effect of unreasonably interfering with the
work environment by creating an intimidating, hostile, or offensive work
environment. We note that agency actions, such as selection decisions,
are part of management's normal business operations, unless the action
is discriminatory. Complainant has not shown that the agency's actions
were discriminatory or constituted illegal harassment, i.e., that it
was based on disability, race or in reprisal. While complainant may
subjectively consider the agency's selection decision to create an
unpleasant working environment for her, she has not shown that the
agency's selection decision was based on a prohibited consideration,
that is her disability, race or in reprisal.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision, because the
preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 1, 2010
Date
1 The FAD notes that OHA has since been renamed the Office of
Disability Adjudication and Review (ODAR). Region III is headquartered
in Philadelphia.
2 This group consisted of 10 African Americans, 18 Caucasians, four with
prior EEO activity, and five who self-identified as disabled.
3 The nine selectees included three African Americans, six Caucasians,
one self-identified as disabled, and none with prior EEO activity.
4 In that complaint, Agency No. 04-0364, complainant alleged
discrimination based on disability when the agency denied her requests to
provide reasonable accommodation. Complainant requested a hearing before
an EEOC Administrative Judge (AJ). The AJ issued a decision without a
hearing (summary judgment) on March 21, 2006, finding that complainant did
not establish that she was a qualified individual with a disability and,
even assuming had she done so, she did not demonstrate that the agency
could provide her the reasonable accommodations she sought. EEOC Hearing
No. 170-2005-00529X. The agency issued a final order on April 28, 2006,
agreeing with the AJ. Complainant filed an appeal, but on June 28, 2006,
she withdrew her appeal. The agency's denial of her request to provide
reasonable accommodation was the subject of her prior complaint and is
not at issue herein.
5 Complainant's assertion that she was ill-advised by her attorney is not
a matter within the Commission's jurisdiction but can be addressed with
her former attorney or appropriate authorities in her attorney's state.
In addition, we find that complainant's brief in support of her appeal
was filed more than thirty days from the date of her appeal, is untimely,
and will not be considered. See 29 C.F.R. � 1614.403(d).
6 See 29 C.F.R. Part 30 and Appendix to Part 1630-Interpretive
Guidance on Title I of the Americans With Disabilities Act (Appendix).
Our regulations and interpretive documents are available on the
Commission's website at www.eeoc.gov/federal.
7 See also EEOC Compliance Manual, Section 8, Retaliation.
8 The Commission has published an enforcement guidance on harassment.
See Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors (June 18, 1999).
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0120083180
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083180