0120101227
01-18-2012
Claudia Ramirez, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Claudia Ramirez,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120101227
Hearing No. 520-2008-00516X
Agency No. BOS 07-2328SSA
DECISION
On January 14, 2010, Complainant filed an appeal from the Agency’s
December 18, 2009, 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. The Commission accepts the appeal, pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.
ISSUES PRESENTED
1. Whether the Agency developed an appropriate factual record and the
EEOC Administrative Judge abused her discretion in conducting the hearing.
2. Whether the Commission has jurisdiction over a claim of discrimination
on the bases of marital status and having children.
3. Whether there is substantial evidence to support the EEOC
Administrative Judge’s finding that Complainant was not subjected to a
hostile work environment on the bases of color (brown), national origin
(Hispanic), and sex (female).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Service Representative at the Agency’s field office in Nashua,
New Hampshire. From 2005 to 2007, Complainant had low or negative
leave balances, due in part to her need to take time off to care for
her children as a single, divorced mother.
Complainant desired to be promoted from a service representative position
to a claims representative position, but felt that the Agency passed
her over multiple times. To enhance her career prospects, she applied
for a 120-day translation detail to the Baltimore, Maryland office. The
district manager submitted her name for the detailed assignment, but
Complainant never heard from the Agency about her application. On October
9, 2007, Complainant filed an EEO complaint, alleging that the Agency
discriminated against her on the bases of national origin (Hispanic), sex
(female), color (Brown), and marital status (divorced). In an attachment,
Complainant described several purportedly discriminatory events:
1. the Agency did not promote her to the position of claims representative
or select her for detail assignments. During one meeting, the district
manager advised Complainant that no one would hire or select her for a
detail assignment if he had to disclose that she had a low leave balance.
2. her first-level supervisor and the district manager gave her
“successful” performance ratings instead of “outstanding” ratings.
3. the Agency reduced her monetary award to $300, whereas the previous
year she received an $800 award.
The Agency accepted for investigation the claim that Complainant was
subjected to a hostile work environment on the bases of color, national
origin (Hispanic), sex (female), and marital status (divorced) when:
1. the district manager continued to use her low leave balance to hinder
her promotion potential
a. the district manager routinely made derogatory comments about her
low leave balance and threatened to disclose her leave balance to others.
b. In July 2007, the district manager stated that once he discloses her
leave balance, no one would hire her.
2. She was given negative evaluations during her performance discussions
without justification.
3. The Agency did not respond to her January 2007 request for a detail.
At the conclusion of the investigation, the Agency provided Complainant a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ) on all the bases, except
marital status. For the basis of marital status, the Agency issued a
final decision, under 5 C.F.R. § 720.901, finding no discrimination.
The Agency specified that Complainant had no appeal rights for this
decision.
Complainant timely requested a hearing on the other bases, and the AJ
held a hearing on June 29, 2009. On December 15, 2009, the AJ issued
a decision, finding that the Agency did not subject Complainant to a
hostile work environment on the bases of color, national origin, or sex.
The AJ first determined that the alleged unwelcome conduct, i.e.,
counseling about a low leave balance, advising Complainant on potential
inquires from selecting officials about her low leave balance, receiving
“successful” performance ratings rather than “outstanding”
ratings, receiving a lower cash award of $300 compared to the previous
year’s $800 award, were not sufficiently severe or pervasive to create
a hostile work environment.
In addition, the AJ found that Complainant failed to show that such
conduct was due to her color, national origin, or sex. The AJ found
that the Agency presented legitimate, nondiscriminatory reasons to
explain its actions, and that Complainant failed to demonstrate that
such reasons were pretexts to mask discrimination.
For example, the district manager testified that he counseled Complainant
about her leave because she had a low leave balance over a three-year
period from 2005 to 2007. As for the detail assignment, the district
manager testified that he merely pointed out that Complainant’s low
leave balance could negatively affect her chances of getting the detailed
assignment, and that he would have to disclose her low leave balance if
asked by the selecting official. The district manager was also concerned
that Complainant would not be able to do the detail in Baltimore, Maryland
because of the needs of her children in New Hampshire. Another Agency
witness explained that the Agency never responded to Complainant’s
application for the detailed assignment because it had decided to send
documents out to translators, rather than detail a translator to the
office. Ultimately, no one was selected for the detail.
According to the district manager, Complainant did not receive a higher
performance rating or cash award because she had a low leave balance,
was sometimes critical of coworkers, spent too much time talking in the
mailroom, and was sometimes rude and impatient with customers.
The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected her to
discrimination on the bases of color, national origin, and sex.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the Agency improperly processed her
complaint in several ways. First, the Agency failed to include reprisal
as a basis of discrimination because Complainant did not have a law
degree and entered the EEO process without a designated representative.
According to Complainant, the Agency should have recognized from the
EEO counselor’s report and the formal complaint that there existed
a viable retaliation claim, in which Complainant talked about being
upset and disappointed, and suffering physical and physiological harm.
Complainant goes on to argue why she believes the record shows that she
was subjected to retaliation.
She also maintains that she had alleged discrimination on the basis of
gender as a mother, ex-wife, and single parent, in that her opportunities
for career advancement were limited by management’s negative views of
her “not having a male spouse to provide family care.”
Complainant argues that the record was not adequately developed in that
the EEO investigator did not afford her enough time to submit a rebuttal
statement to management’s affidavits. Complainant also maintains that
the AJ abused her discretion in limiting her hearing testimony to the
most recent alleged incidences of harassment, and not permitting her to
recount, as background information, previous occasions when the Agency
passed her over for promotion. In addition, she argues that the AJ erred
in excluding two of her proposed witnesses from testifying at the hearing.
ANALYSIS AND FINDINGS
Preliminary issues
a. Reprisal
Upon review, we find that the Agency did not err when it did not include
reprisal as a basis of discrimination. Even though Complainant may have
alleged that she suffered pain and emotional harm from alleged adverse
employment actions, such allegations go to the issue of damages, not
liability, and do not in and of themselves invoke retaliation. Moreover,
nothing in the record indicates that Complainant notified the Agency
or the AJ of her desire to amend her complaint to include reprisal as
a basis of discrimination.
b. Caregiver and Marital Status
Complainant alleged that she was discriminated against because she was
a single, divorced mother with children, who had to regularly exhaust
her leave to take care of her kids. Because of her need to care for
her children, she was denied opportunities for career advancement.
We must determine whether this allegation raises a claim of
sex-based disparate treatment of a female caregiver. Generally,
employment decisions that discriminate against workers with caregiving
responsibilities are prohibited by Title VII if they are based on sex or
another protected characteristic. EEOC Enforcement Guidance: Unlawful
Disparate Treatment of Workers with Caregiving Responsibilities, EEOC
Notice No. 915.002, at 10 (May 23, 2007).
There are many ways to raise a claim of sex-based disparate treatment
of female caregivers, including alleging:
• male workers with caregiving responsibilities received more favorable
treatment than female workers with caregiving responsibilities;
• decisionmakers or other officials made comments evincing sex-based
stereotypical views of working mothers or other female caregivers;
Disparate Treatment of Female Caregivers as Compared with Male
Caregivers
Here, Complainant contends that because she was a divorced woman with
children, she was treated differently than married male coworkers, who
had wives to take care of their children, and therefore did not have to
exhaust their leave.
At first glance, it appears that Complainant is alleging that male
workers with caregiving responsibilities received more favorable treatment
than female workers with caregiving responsibilities. But upon closer
inspection, what she is contending as the basis for unequal treatment
is marital status, not sex: single, unmarried caregivers are treated
differently than married caregivers, because married caregivers have
spouses to take care of their children and do not have to exhaust
their leave. The Commission does not have jurisdiction over claims
of discrimination based on marital status as they are not within the
purview of Title VII. Duplantier v. Dep’t of the Navy, EEOC Request
No. 05920609 (Nov. 27, 1992).
Gender Role Stereotyping of Working Women
Complainant also appears to allege that her supervisor discouraged
her from pursuing a detail opportunity in another state because of her
caretaking responsibilities.
Title VII does not permit employers to treat female workers less favorably
merely on the gender-based assumption that a particular female worker
will assume caretaking responsibilities or that a female worker’s
caretaking responsibilities will interfere with her work performance.
EEOC Enforcement Guidance: Unlawful Disparate Treatment of Workers
with Caregiving Responsibilities, EEOC Notice No. 915.002, at 11-12
(May 23, 2007).
For example, employers may make the stereotypical assumptions that women
with young children will (or should) not work long hours and that new
mothers are less committed to their jobs than they were before they had
children. Id. at 14. Relying on such stereotypes, some employers may
deny female caregivers opportunities based on assumptions about how they
might balance work and family responsibilities. Id. Adverse employment
decisions based on such sex-based assumptions or speculation, rather
than on the specific work performance of a particular employee, violate
Title VII. Id. at 15
However, employment decisions that are based on an employee’s actual
work performance, rather than assumptions or stereotypes, do not generally
violate Title VII, even if an employee’s unsatisfactory work performance
is attributable to caregiving responsibilities. Id. at 16.
The Enforcement Guidance provides an example of an employment decision
lawfully based on actual work performance.
After Carla, an associate in a law firm, returned from maternity
leave, she began missing work frequently because of her difficulty in
obtaining childcare and was unable to meet several important deadlines.
As a result, the firm lost a big client, and Carla was given a written
warning about her performance. Carla’s continued childcare difficulties
resulted in her missing further deadlines for several important
projects. Two months after Carla was given the written warning, the
firm transferred her to another department, where she would be excluded
from most high-profile cases but would perform work that has fewer
time constraints. Carla filed a charge alleging sex discrimination.
The investigation revealed that Carla was treated comparably to other
employees, both male and female, who had missed deadlines on high-profile
projects or otherwise performed unsatisfactorily and had failed to
improve within a reasonable period of time. Therefore, the employer
did not violate Title VII by transferring Carla.
Id.
We find that Complainant’s allegation is similar to this example. Here,
the supervisor’s concerns about Complainant’s negative leave balance
and caretaking responsibilities were based on Complainant’s actual
negative leave balance and his specific knowledge about Complainant’s
child, rather than assumptions or stereotypes about female caregivers
as a whole.
We conclude that Complainant did not establish a claim of gender
role stereotyping of working women. Therefore, the Commission has no
jurisdiction over this claim of discrimination based on marital status.
c. Appropriate Factual Record and Opportunity to Present Case
Complainant essentially contends that she did not have a fair opportunity
to present her case because (1) she did not have an opportunity to submit
a written statement to rebut management’s affidavits; (2) the AJ limited
her hearing testimony to the most recent incidents of alleged harassment;
and (3) two of her proposed witnesses did not testify at the hearing.
EEOC regulation 29 C.F.R. § 1614.108(b) provides:
[T]he agency shall develop an impartial and appropriate factual record
upon which to make findings on the claims raised by the written complaint.
An appropriate factual record is one that allows a reasonable fact finder
to draw conclusions as to whether discrimination occurred.
We find that the Agency developed an appropriate factual record upon
which to make findings on the claims raised by the written complaint.
Even though Complainant may not have had an opportunity to submit a
written statement to rebut management’s affidavits, she was given
a fair opportunity to rebut management’s statements at the hearing
through her own testimony and cross-examining the management officials.
We also find that the AJ did not abuse her discretion in not permitting
Complainant to testify at the hearing about previous incidents that served
only as background information. The record included Complainant’s
formal complaint and affidavit, in which she discussed the previous
incidents between her and the district director.
In addition, Complainant has not demonstrated how her case was prejudiced
by the absence at the hearing of two proposed witnesses, given that
both witnesses submitted affidavits that did not appear to support
Complainant’s contentions of discrimination. One witness averred
that she had never witnessed the district manager harass Complainant,
and instead thought that the workplace issues were due to personality
conflicts. The other witness averred that she thought the district
manager treated Complainant in a “fatherly” manner, but did not know
whether she could characterize this as discrimination or not.
Upon review, we find that the Agency developed an appropriate factual
record upon which to make findings on the claims raised by the written
record, and that Complainant was afforded a fair opportunity to present
her case before an EEOC AJ.
Hostile Work Environment Harassment Claim
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. National Labor Relations
Board, 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. An AJ’s credibility determination based
on the demeanor of a witness or on the tone of voice of a witness will
be accepted unless documents or other objective evidence so contradicts
the testimony or the testimony so lacks in credibility that a reasonable
fact finder would not credit it. See EEOC Management Directive 110,
Chapter 9, at § VI.B. (November 9, 1999).
To establish hostile work environment harassment by a supervisor,
Complainant must show five things. First, Complainant must be a member
of a statutorily protected class. Second, the supervisor engaged in
unwelcome verbal or physical conduct. Third, the unwelcome conduct
was based on Complainant’s statutorily protected class. Fourth, the
unwelcome conduct either (a) affected a term or condition of employment,
or (b) had the purpose or effect of unreasonably interfering with the
work environment or creating an intimidating, hostile, or offensive
work environment. Fifth, there is a basis for imputing liability to
the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11.
Upon review, we find that there is substantial evidence in the record to
support the AJ’s finding that Complainant was not subjected hostile
work environment harassment on the bases of color, national origin, or
sex. In particular, we find substantial evidence to support the AJ’s
determination that Complainant did not establish the third element of
a hostile work environment harassment claim, that the unwelcome conduct
was based on Complainant’s color, national origin, or sex.
As noted in the AJ’s decision, management officials articulated,
through their hearing testimony and written affidavits, legitimate,
nondiscriminatory reasons for their actions. For example, the district
manager testified that his counseling sessions and discussions about
Complainant’s prospects for advancement were motivated by her low
leave balance, not her status as a Hispanic female worker. In Blade
v. U.S. Postal Serv., EEOC Appeal No. 01903391 (Sept. 14, 1999), the
agency stated that the reason it did not promote an employee was because
of a low sick leave balance. The Commission in Blade considered that
reason to be a valid explanation for the agency’s denial of promotion.
Similarly, we find in this case that the district manager’s articulated
reason of low leave balance constitutes a valid explanation for
counseling Complainant and speaking with her about her prospects for
career advancement. We find that there is substantial evidence in the
record to support the AJ’s finding that management’s actions were
based on legitimate, nondiscriminatory reasons, rather than discriminatory
motives due to Complainant’s color, national origin, or sex.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final order, adopting the AJ’s finding of no discrimination
on the bases alleged.
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
__1/18/12________________
Date
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0120101227
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101227