01976900
10-27-1998
Thelma A. Beckham, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Thelma A. Beckham v. Social Security Administration
01976900
October 27, 1998
Thelma A. Beckham, )
Appellant, )
)
v. ) Appeal No. 01976900
) Agency No. 97-0504
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated August 5, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
According to the final agency decision, the appellant alleged in her
complaint that based on her sex, age, and retaliation, the agency
subjected her to harassment (nonsexual) in the form of a derogatory
letter, dated April 17, 1997, written by an Administrative Law Judge
to an attorney representing a claimant. The decision dismissed the
appellant's complaint for failure to state a claim.
On appeal, the appellant acknowledges that the letter did not mention
her by name. The appellant points to a copy of a hearing transcript
where the Administrative Law Judge referenced the appellant by name and
made what the appellant characterizes as "derogatory and demeaning"
statements about her. The appellant represents that she was unable
to obtain copies of other transcripts wherein the Administrative Judge
continued his "tirade" against her.
The proper focus for dismissals of individual EEO complaints under 29
C.F.R. �1614.107(a) is on whether the complainant is allegedly aggrieved
due to an unlawful employment practice in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.;
the Age Discrimination in Employment Act, as amended, 29 U.S.C. 621 et
seq.; the Equal Pay Act, 29 U.S.C. 206(d); or the Rehabilitation Act,
as amended, 29 U.S.C. 791 et seq. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997), citing Hishon v. King &
Spalding, 467 U. S. 69, 73 (1984) (complaint states a claim because
Title VII's prohibition of discrimination with respect to an employee's
"terms, conditions, or privileges of employment" includes benefits that
are part of an employment contract and benefits which an employer chooses,
but is not required, to provide its employees).
However, even where a complaint does not challenge an agency action
or inaction regarding hiring, termination, compensation, or any other
specific term, condition, or privilege of employment, the complaint may
still state a claim if the complaint allegations are sufficient to state
a hostile or abusive environment claim. Id., citing Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993) (harassment is actionable if it
is sufficiently severe or pervasive to alter the conditions of the
complainant's employment). A complainant is not required to use any
specific words or phrases to state a hostile or abusive work environment
claim. Instead, a complainant must allege facts which, when considered
together and assumed to be true, indicate that the complainant may have
been subjected to discriminatory harassment that was sufficiently severe
or pervasive to alter the conditions of his or her employment. Cobb,
supra.
In this case, the appellant has not alleged that the agency has
disciplined her for mishandling of case files or otherwise adversely
affected a specific term, condition, or privilege of employment.
The Commission also finds that the appellant has not alleged facts which
indicate that she may have been subjected to discriminatory harassment
that was sufficiently severe or pervasive to alter the conditions of her
employment. In making this determination, the Commission has considered
portions of the April 22, 1997 hearing transcript placed in the record
by the appellant. Therein, the Administrative Law Judge described at
length his feelings about a disagreement he had with the appellant on
March 6, 1997, concerning the appropriateness of her telling him what he
ethically could or could not do. These remarks, although lengthy, do not
suggest that the appellant's working conditions have been altered. See,
e.g., Miller v. United States Postal Service, EEOC Request No. 05941016
(June 2, 1995) (an oral admonishment was not sufficient to state a hostile
work environment claim); and Backo v. United States Postal Service, EEOC
Request No. 05960227 (June 10, 1996) (supervisor's remarks on several
occasions, unaccompanied by any concrete action, were not sufficient to
state a claim).
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's July 28, 1997 complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 27, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations