01a55017
12-02-2005
Betty J. Perez, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Betty J. Perez v. Social Security Administration
01A55017
December 2, 2005
.
Betty J. Perez,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A55017
Agency No. 04-0004-SSA
DECISION
Complainant appeals to the Commission from the agency's June 1, 2005
decision finding no discrimination. According to the agency's decision,
complainant alleges that she was discriminated on bases of race (Hispanic)
and national origin (Mexican-American<1>) when:
1. On June 3, 2003, complainant was chastised by her supervisor for
hosting boisterous visitors in her office.
Complainant was routinely given more complex assignments than her peers.
Complainant's efforts were not recognized through performance awards
though complainant's work product was superior than that of her peers.
Complainant's coworkers subjected complainant to hazing because she
received remedial training. Management made no effort to stop this
harassment.
Supervisors disclose confidential discussions complainant has with them.
On June 14, 2002<2>, complainant's supervisor informed her that she would
have to undergo counseling for returning from lunch late without prior
approval. Complainant's efforts to discuss this situation proved futile.
The agency, in its decision, concluded that it asserted a legitimate,
nondiscriminatory reason for its actions, which complainant failed
to rebut. Complainant now appeals from that decision.
We find that the agency has articulated a legitimate, nondiscriminatory
reason for its actions. With respect to claim 1, a Senior Attorney
(Attorney 1) stated that, since September 2003, she had received more
than one complaint about complainant and one or two of her coworkers
talking loudly and sounding like they were having a party. The Senior
Attorney said that she spoke to complainant's supervisor, who retired
in December 2003, about the incidents. The Acting Hearing Office Chief
Administrative Law Judge in San Antonio (HOCALJ) stated that she recalled
where an employee had made two or three complaints that several employees
were congregating in complainant's office and making so much noise that
it was distracting them from their work. The HOCALJ asked the Acting
Hearing Office Director to discuss the alleged incidents with supervisors
of complainant and with employees involved and to take appropriate steps
to stop excessive visiting if this was found to be occurring.
Regarding claim 2, the HOCALJ stated that, prior to complainant's
supervisor's retirement in the summer of 2003, she was informed that
complainant was being assigned mostly favorable cases which were the least
difficult to write. Similarly, complainant's second level supervisor
said that she did not believe that complainant's immediate supervisor gave
complainant more complex assignments than she gave to the other writers.
In terms of claim 3, the Hearing Office Director stated that, during
her eight-month tenure, several administrative law judges reported to
her that complainant had performed less work than most of her peers
and the quality of complainant's work was inferior. The HOCALJ argued
that the draft decisions written by complainant on her cases have not
been superior to drafts written by complainant's peers. The former
Hearing Office Director reported that management felt complainant might
benefit from more training because complainant was struggling with her
work assignments; accordingly, complainant was asked to attend a second
decision writing class because the quality and quantity of her work
needed to improve. The former Hearing Office Director stated that,
although she had hoped the quality and quantity of complainant's work
would progress to an upward level, and while she believed complainant
certainly had that potential, complainant had not achieved that level
of performance throughout the time she served in her supervisory chain.
Regarding claim 4, the former Hearing Office Director stated that
she did not recall complainant's coworkers �hazing� complainant.
Additionally, the former Hearing Office Director said that she did not
recall complainant complaining to her about any such matters. The former
Hearing Office Director asserted that there was some resentment in the
office about complainant being promoted to a Decision Writer position
because it was generally believed that complainant did not hold up her
share of the office workload. The former Hearing Office Director argued
that the office had its share of gossipers and complainant was not the
only one in the office who had been made the target of gossip.
As to claim 5, a Paralegal stated that management had discussed workload
issues with subordinate employees. The Paralegal asserted that, when
management talked about the number of products produced by various
decision writers, they were attempting to increase productivity.
However, the Paralegal explained that, because the supervisors relay
this personal information to their subordinates, tension and distrust
were created within the office. Attorney 1 stated that she did not
believe that managers �leaked� personal information to non-management
employees. Attorney 1 argued that managers received specific warnings
and directions not to discuss information from management meetings with
non-management employees. Attorney 1 added that complainant's supervisor
seemed to be particularly careful not to discuss information which she
thought was confidential and explained that if complainant's supervisor
had a private meeting with an employee, she did not discuss the content
of the meeting with other members of management.
Regarding claim 6, a former union steward said that the entire staff
was given advance notice that the former Chief Administrative Law Judge
was going to conduct a staff meeting on the day in question. The former
union steward reported that the meeting was in session when complainant
and another coworker arrived at the meeting extremely late. The former
union steward asserted that the former Chief Administrative Judge appeared
upset that complainant and a coworker were late and that both of them
should have been on time to the meeting like the rest of the staff.
As to the claim of harassment, the agency noted that complainant's
alleged discriminatory harassment consisted of the incidents as stated in
claims 1 through 6. The agency found that, although the aforementioned
acts and ridicule understandably engender offensive feelings, they do
not sufficiently affect the conditions of employment or rise to the
level of actionable harassment. Additionally, the agency found that,
beyond asserting her displeasure with such conduct, complainant failed
to proffer sufficient evidence showing how the conduct complained of
interfered with her work performance and/or created an objectively
hostile or offensive work environment. Moreover, the agency found that
the nature and frequency of the conduct outlined above guides their
conclusion that these incidents were too sporadic and not sufficiently
severe to constitute actionable harassment under Title VII. Furthermore,
the agency found that complainant failed to offer any evidence to support
her contention that the actions directed at her were because of her race
and/or national origin.
The Commission finds that complainant failed to show that the agency's
reasons are pretext for discrimination. Furthermore, complainant failed
to show, by a preponderance of the evidence, that she was discriminated
against on the bases of race or national origin.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 2, 2005
__________________
Date
1The agency's December 18, 2003 Letter of Acceptance to complainant
mistakenly listed complainant's national origin as Hispanic. Complainant
correctly identified her national origin as Mexican-American in her
affidavit dated March 16, 2004.
2The agency's December 18, 2003 Letter of Acceptance to complainant
mistakenly indicated a date of June 14, 2003 instead of 2002.
Complainant corrected the date for this issue in her affidavit dated
March 25, 2004.