01A42757
06-29-2004
Carlotta Y. Smith, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Carlotta Y. Smith v. Social Security Administration
01A42757
June 29, 2004
.
Carlotta Y. Smith,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A42757
Agency No. 02-0324-SSA
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Claims Clerk, GS-5, at the agency's
Florence, Alabama District Office, filed a formal EEO complaint on June
3, 2002, alleging that the agency had discriminated against her and
harassed her on the bases of sex (female) and reprisal for prior EEO
activity<1> when:
(1) On April 18, 2002, complainant was issued a memorandum entitled
�Extension of Progress Review� for fiscal year 2002 (FY02), which was
placed in her SF-7B extension file;
Management did not grant her request to have the Management Support
Specialist removed as her mentor; and
She did not receive a performance award for fiscal year 2001 (FY01).
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision without a hearing, finding no
discrimination. The agency's final order implemented the AJ's decision.
The AJ concluded that complainant established neither a prima facie case
of discrimination based on sex nor reprisal as to Claim 1. Specifically,
the AJ found that complainant failed to show that similarly situated
employees outside of complainant's protected classes were treated
differently under similar circumstances. The AJ also concluded that a
prima facie case was not established as to Claim 2, regarding the removal
of complainant's mentor, because complainant was not subjected to any
adverse employment action, and therefore not aggrieved. As to Claim 3,
the AJ concluded that even if a prima facie case of discrimination was
established regarding the failure to give a performance award for FY01,
the agency articulated legitimate, nondiscriminatory reasons for its
failure to do so. Namely, the agency maintained that no award was given
because complainant failed to meet the requirements and did not receive
enough points. Additionally, complainant alleged that all of the above
circumstances created a pervasive hostile environment in the workplace
based on sex. The AJ, however, concluded that the evidence failed to
show that the alleged harassment stemmed from discriminatory animus,
and/or was so severe and pervasive as to alter the terms, conditions,
or privileges of complainant's employment.
On appeal, complainant argues that the investigatory record used by the
AJ was inaccurate. She contends that the agency's witness statements
were fabricated and complainant's witnesses were either not interviewed,
or inaccurately represented in the record. She further alleges that
her sex-based harassment claim was mishandled by allowing the alleged
harasser to continue working, thereby failing to alleviate the hostile
work environment.<2>
In its brief in opposition to complainant's appeal, the agency requests
that we affirm its final order. It argues that on appeal, complainant
failed to specify which witness statements were inaccurately represented
or how the witnesses who were not interviewed could contribute relevant
information to the record. The agency also asserts that complainant
neither addresses any of the AJ's specific findings, nor identifies any
errors by the AJ that would warrant reversal of the decision.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), the Commission reviews decisions
without a hearing under a de novo standard. The Commission's regulations
allow an AJ to issue a decision without a hearing when he finds that there
is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth
in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme
Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards
that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling
on a motion for summary judgment, a court's function is not to weigh
the evidence but rather to determine whether there are genuine issues
for trial. Id. at 249. The evidence of the non-moving party must be
believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. at 255. An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, issuing a decision without a hearing
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider issuing a decision without a hearing only
upon a determination that the record has been adequately developed for
summary disposition.
In her appeal, complainant asserts that the witness testimony included
in the record is inaccurate and incomplete. She further claims that
she was not given the opportunity to confront and/or disprove the
witness statements that were included in the record. In preparation
for a hearing, both the agency and complainant issued proposed witness
lists to the AJ summarizing the anticipated testimony of each individual.
However, the Commission finds that none of the anticipated testimony of
complainant's witnesses would have raised a genuine issue of material
fact as to whether the agency's proffered reason was a pretext for
discrimination. Moreover, complainant's arguments on appeal simply deny
the veracity of the witness statements. Mere allegations or denials are
not enough to prevent a decision without a hearing. Complainant �must
do more than simply show that there is some metaphysical doubt as to
the material facts.� Matsushita Electrical Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986). The complainant has failed
to meet this burden. Therefore, after close analysis of the record,
the Commission concurs with the AJ's issuance of a decision without a
hearing, as no genuine dispute of material fact exists.
The Commission also concludes that the agency has developed an appropriate
and impartial factual record pursuant to 29 C.F.R. � 1614.108, and
that the AJ's finding of no discrimination based upon this record
was proper. To prevail in a disparate treatment claim such as this,
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by
demonstrating that she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n.14. 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). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
Concerning claim 1, we note that a negative performance evaluation
can constitute an adverse action. Yet, the agency articulates a
legitimate, nondiscriminatory reason for the negative evaluation.
Complainant initially received a satisfactory progress review from the
Operations Specialist; however, the review did not include information
from complainant's mentor, the Management Support Specialist, in charge
of complainant's workload. While the Management Support Specialist
was not authorized to give progress reviews, the Operations Specialist
relied on her input for employee performance reviews. According to
the Management Support Specialist, there were numerous deficiencies in
complainant's work. The Extension of Progress Review was then given to
allow complainant an opportunity to correct any deficiencies before the
final performance review. Accordingly, the evaluation was given to help
complainant improve her performance, not to impede it. Nevertheless,
complainant failed to establish that the negative performance evaluation
was issued based on discriminatory or retaliatory animus, and she failed
to establish discrimination with regard to Claim 1 by a preponderance of
the evidence. Furthermore, we concur with the finding that the refusal to
remove complainant's mentor under Claim 2 fails to constitute an adverse
employment action. Complainant has failed to show that the failure to
remove the individual caused her any harm or loss with respect to a term,
condition, or privilege of employment, or was sufficiently severe or
pervasive to rise to the level of harassment.
Complainant also claims that her mentor�poisoned� the awards committee
against complainant so that she did not receive the FY01 performance award
described in Claim 3. The Commission finds that the agency expressed
a legitimate, nondiscriminatory reason for not giving complainant
an award for that period. Not only did she not qualify with enough
points or nominations, but the issuance of an award required a unanimous
decision by a four-member awards panel. Complainant failed to prove
that discriminatory or retaliatory motivation was the reason for her
not receiving the award. Likewise, the Recognition of Contribution
(ROC) award is only given to employees who maintain a high quality
of performance and go �above and beyond� their job responsibilities.
According to the agency, complainant was not even performing her basic
job duties adequately at the time. Complainant fails to argue why she
deserved the award, and therefore also fails to show that the reasons
proffered by the agency were a pretext for discrimination.
Finally, the Commission concurs with the AJ's treatment of complainant's
harassment claim. For such a claim to be actionable, the workplace must
be permeated with discriminatory intimidation, ridicule, and insult.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Such instances
must also be sufficiently continuous, not merely episodic, in order to
be considered pervasive. Faragher v. City of Boca Raton, 118 S.Ct. 2275,
2283 n.1 (1998). The events in question simply do not rise to the level
required to establish actionable harassment.
Therefore, we find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Further, construing the evidence to be most favorable to complainant, we
note that complainant failed to present evidence from which a reasonable
fact finder could conclude that any of the agency's actions were motivated
by discriminatory or retaliatory animus towards complainant's protected
classes. Accordingly, the agency's final order 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
June 29, 2004
__________________
Date
1The record indicates, and the
agency does not dispute, that complainant filed two prior EEO complaints
with the agency on July 31, 2001, and October 3, 2001, but it is unclear
under which statutes such activity occurred.
2In her appeal, complainant raises the issue that she was also precluded
from receiving promotions on the basis of race discrimination. Yet,
neither this basis nor issue were raised in her formal complaint, the
EEO Counselor's report, or in the issues accepted for investigation.
Therefore, we will not further address these claims on appeal.
If complainant wishes to further pursue these matters, she should contact
an EEO counselor.