0120102343
12-10-2010
Cherie S. Lewis, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Cherie S. Lewis,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102343
Agency No. SF-09-0273-SSA
DECISION
On April 29, 2010, Complainant filed an appeal from the Agency's April 5,
2010, final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission deems the appeal timely and accepts it pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the evidence in the record supports the
Agency's determination that Complainant was not discriminated against
based on her race, age and disability with respect to her claim of
disparate treatment and a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as an Attorney Advisor (Decision Writer), GS-12, at the Agency's
West Los Angeles Office of Disability Adjudication and Review (ODAR)
in Los Angeles, California. On March 17, 2009, Complainant filed an
EEO complaint alleging that the Agency discriminated against her and
subjected her to a hostile work environment (since September 2007)
on the bases of race (Caucasian), age (57), and disability (multiple
orthopedic surgeries and vision impairment) (for issue 7 only) when:
1. on January 15, 2009, she received a reprimand containing false
information regarding an alleged Personal Identifiable Information (PII)
violation;
2. on January 15, 2009, management failed to notify her of her right to
union representation when she was issued the written reprimand, which
violated her rights and the agency's policy of progressive discipline
for employees;
3. work is not fairly distributed, as she is given more difficult cases;
her decisions are not reviewed in conformance with the policy for
uniformed standards of quality and review, and she believes that this
is an attempt to build a false record of less than adequate performance;
she is monitored daily and she believes that management is systematically
setting her up for failure and low production;
4. she is only given one case at a time (sometimes less than one a day)
instead of a full case load for at least an entire week per policy;
5. she does not receive overtime on an equal basis;
6. she was not given the opportunity to apply for recent Senior Attorney
positions; and
7. on January 29, 2009, she was given heavy cases to take home for
flexiplace, which exacerbated her orthopedic condition.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the Report of Investigation (ROI) and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
In accordance with Complainant's request on October 15, 2009, the Agency
issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The record reflects that Complainant's duties as an Attorney
Advisor/Decision Writer are to assist Agency Administrative Law Judges
(ALJs) in the processing of claims for Social Security benefits, in
part by drafting decisions for issuance by the ALJs. ROI, Exhibit
19. Complainant had been in her position at the Agency since 1998.
Her first level supervisor from August 2007 through December 2008 was
a Senior Attorney, MO-1 (black, 50). After MO-1 was transferred to a
different office, she was directly supervised by a non-attorney Group
Supervisor, MO-2 (black, 43). Complainant's second level supervisor
was the Hearing Office Director, MO-3 (black, 56). In mid-2007, a new
Hearing Office Chief ALJ was assigned to the West Los Angeles ODAR, MO-4
(white, 54).
When MO-4 took over the office, she was "not satisfied with the overall
quality of decision writing in the office." (FAD, p. 10). Among the
changes implemented were that
Attorney Advisors/Decision Writers would no longer work for specific ALJs,
but rather would write for all ALJs. As this led to complaints from the
ALJs about the quality of the decisions written, several of the Decision
Writers were placed on review, including Complainant. While on review,
the Decision Writers were assigned only one case at a time.
In its decision, the Agency found that, with respect to issue 1,
Complainant had not shown that she had been discriminated against based
on race or age. MO-3 testified that he did not issue Complainant a
letter of reprimand, but that rather on January 8, 2009, a letter was
placed in her file regarding a PII violation which occurred when she
took home cases as part of her flexiplace work schedule. According to
MO-3, Complainant did not properly submit the paperwork required to
remove files from the office. Complainant was aware of the office
policy on handling PII, and had signed a statement to that effect in
November 2008. The Agency found that Complainant had not shown that
other Decision Writers, not of her protected classes, had violated the
PII policy and had not been issued a letter to their file. The Agency
concluded that Complainant had not shown that the Agency's legitimate,
nondiscriminatory reasons were pretext for discrimination.
In connection with issue 1, Complainant had claimed that MO-3 failed
to notify her of her right to union representation at the disciplinary
meeting at which she received the letter in issue 1. MO-3 testified that
as the January 8, 2009 letter was not official discipline, Complainant
was not entitled to union representation at the meeting he held with
Complainant. The Agency noted that Complainant had not set forth any
evidence that similarly situated individuals, not of her protected
classes, had been apprised of their right to union representation under
similar circumstances. Further, even assuming Complainant had a right to
representation at the meeting, that would be a violation of the collective
bargaining agreement (CBA) between Complainant's representative union
and the Agency, and not a violation of the EEO laws.
Regarding issues 3 and 4, as noted above, MO-4 instituted some changes
in office processes when she became Chief ALJ of the West Los Angeles
ODAR. Along with other Attorney Advisor/Decision Writers, Complainant
was placed on review and her draft decisions were read and critiqued
by a Senior Attorney before being released to the ALJ for whom the
decision was written. Decision Writers are generally given the more
difficult cases to draft, as ALJs often keep the decisions which may be
drafted quickly for themselves. Complainant was the second attorney
to come off review, in early 2009, as the Senior Attorney reviewing
her drafts had indicated that her quality had improved by this point.
Decision Writers on review were only issued one case at a time to draft
as a way of allowing management to track issues that were having an impact
on productivity. The Agency found that Complainant had not presented any
evidence that her race or age played a part in the decision to place her
on review, or that the Agency's reasons were pretext for discrimination.
In issue 5, Complainant had claimed that she did not receive overtime
on an equal basis as that of younger employees. The Agency found that
Complainant had established a prima facie case of age discrimination,
but not race, in that a younger employee had been granted more overtime
than Complainant. However, MO-4 testified that any Decision Writer
who had productivity problems would not be granted overtime, and MO-3
testified that he could only recall one occasion where Complainant had
requested overtime, which was granted. The Agency noted that Complainant
had not provided any evidence of dates on which she had requested, but
been denied, overtime. As such it found that Complainant had not shown
that she had been discriminatorily denied overtime on the basis of her
race or age.
Complainant claimed in issue 6 that she had not been given the opportunity
to apply for Senior Attorney positions. She testified that when MO-1
left the West Los Angeles ODAR, she was not notified of the opportunity
to apply for the position. She also noted two other Senior Attorney
positions she felt should have been open to her for application.
MO-3 testified that there were no vacancies for which Complainant, or
any other individual, could have applied. When MO-1 was reassigned,
her position at the West Los Angeles ODAR was eliminated. According to
MO-3, following the retirement of one Senior Attorney, the office was not
authorized to fill the vacancy, and for the one Senior Attorney position
which was filled in 2007, a selection was made from a nationwide roster
of qualified candidates. MO-3 was unaware of whether Complainant
had actually applied for the position. MO-3 testified that it was
his practice to send out an office-wide e-mail announcing vacancies of
this sort. The Agency concluded that Complainant had not shown that the
Agency's legitimate, nondiscriminatory reasons were pretext for race or
age discrimination.
Finally, in issue 7, Complainant claimed that MO-2 had assigned her
three cases for flexiplace work which weighed a total of 31 pounds, and
that this was discriminatory on the basis of her physical disabilities.
She claimed that other, non-disabled employees were not given heavy case
files to take home. MO-2 testified that he assigned Complainant three
electronic case files for her flexiplace work, but that Complainant
told him that she prefers to work from the paper files and insisted on
taking the paper versions home with her instead. Among other things,
the Agency found that Complainant had no restrictions on lifting and
that she had not requested a reasonable accommodation. It further
found that that there was no evidence of race or age discrimination in
the assignment of heavy paper files to Complainant, and that she had
not shown that the Agency's legitimate, nondiscriminatory reasons were
pretext for discrimination.
As to Complainant's harassment claim, the Agency concluded that
Complainant had not shown that the events above were severe or pervasive
such that a hostile work environment existed. The decision concluded
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant submitted a statement in which she disputed the
Agency's findings and argued that the Agency's decision inappropriately
granted more credibility to the statements of management officials, as
opposed to her own testimony. She further argued that an incident between
her and MO-1 which occurred on December 11, 2008 was not addressed in
the decision, and stated that it was evidence in support of her hostile
work environment claim. Additionally, for the first time on appeal,
Complainant claimed that "discriminatory management policies" on the
part of MO-4 were at the heart of a hostile work environment based on
age for her and eight other individuals in the West Los Angeles ODAR.
She also claimed that the Agency had failed to provide her with the
exhibits referenced in its decision.1
In its opposition to Complainant's appeal, the Agency submitted a brief
in which it argued that its FAD was supported by the facts in the record
and had correctly concluded that Complainant had not been discriminated
against.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
� VI.A. (November 9, 1999) (explaining that the de novo standard of review
"requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker," and
that EEOC "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").
In reference to Complainant's contention that the Agency decision
improperly granted greater credibility to the statements of Agency
officials, we note that Complainant had the option of requesting a
hearing before an EEOC AJ, who could have made credibility determinations
following any hearing which may have been held. As Complainant did not
chose that option, and instead requested a decision on the record, the
Agency decision was free to resolve differences in testimony based on
its assessment of the record. In any event, as the Commission on appeal
reviews the facts and testimony under a de novo review, the Agency's
determinations on credibility are not automatically granted deference.
Disparate treatment - race, age and disability
In general, disparate treatment claims, such as the matter before us,
are examined under a tripartite analysis whereby Complainant must first
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 Corp. v. Green, 411 U.S. 792,
802-804 (1973); Furnco Constr. Corp. v. Waters. 438 U.S. 567 (1978);
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)
(applying the analytical framework described in McDonnell Douglas to an
ADEA disparate treatment claim). The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the Agency is successful, the burden reverts back to the Complainant
to demonstrate by a preponderance of the evidence that the Agency's
reasons were a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by
a preponderance of the evidence that the agency acted on the basis of a
prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-716
(1983).
Complainant may establish a prima facie case of discrimination based on
race, age, and disability2 by demonstrating that (1) she is a member
of a protected class, (2) she was subjected to adverse treatment,
and (3) she was treated differently than otherwise similarly situated
employees outside of her protected class. Walker v. U.S. Postal Serv.,
EEOC Appeal No. 01A14419 (Mar. 13, 2003); Ornelas v. Dep't of Justice,
EEOC Appeal No. 01995301 (Sept. 26, 2002). It is not necessary, however,
for Complainant to rely strictly on comparative evidence to establish an
inference the Agency was motivated by unlawful discrimination. Soriano
v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb. 21, 2003); see also
O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996);
EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,
EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996). The record supports
findings that for issues 1-7 Complainant did not establish a prima
facie case of race discrimination, that for issues 1-4 and 6-7 she did
not establish a prima facie case of age discrimination, and for issue 7
she did not establish a prima facie case of disability discrimination.
Complainant did not show that similarly situated individuals, not of
her protected classes were treated differently or more favorably as to
each issue. Regarding issue 5, the granting of overtime, Complainant did
show that a younger employee had been granted overtime in more instances,
and so established a prima facie showing of age.
However, with each issue, the Agency offered legitimate, nondiscriminatory
reasons for its actions. Regarding issues 1 and 2, the agency noted
that Complainant did not follow the procedure for dealing with PII, and
that she had been trained in the procedure within the preceding year.
Although Complainant argued that no PII was released, the Agency
emphasized that the letter was placed in Complainant's file for the
violation of procedures. The Agency also noted that the meeting with
MO-3 at which she was notified that the letter was placed in her file
was not disciplinary in nature. Even if we were to find that it was,
we note that a denial of the right to union representation would be a
violation of the CBA, as opposed to conclusive evidence of race or age
discrimination.
Regarding issues 3 and 4, the Agency described the circumstances under
which MO-4 placed several Decision Writers on review, assigned each only
one case at a time, and subjected their draft decisions to critiquing
before release to the ALJs. We find the agency satisfied its burden
to produce a legitimate, nondiscriminatory reason for its treatment
of Complainant in this regard. Complainant has not shown that those
reasons were pretext for discrimination on the bases of her race or age.
Complainant's argument on appeal that the Agency's decision to place the
Decision Writers on review violated the CBA is misplaced with regard to
showing race or age discrimination, as we find that there is no evidence
to support that allegation.
In issue 5, Complainant claimed that she was not granted overtime as
often as younger employees. The Agency put forth that Complainant
did not request overtime as often as those comparators, and we find
that Complainant did not point to specific instances in which she had
requested overtime and it was denied such that we could find that she
was discriminated against based on her age.
Likewise, in issue 6, Complainant claimed that she was denied the
opportunity to apply for several Senior Attorney positions. The Agency
noted that two of those positions were not filled by anyone, and for the
third position, Complainant did not seem to have applied for the vacancy.
We note that Complainant did not argue that she had applied for the
positions and had not been selected, and she did not submit evidence
that she was prevented from applying for publically posted vacancies.
We conclude that Complainant did not show that she was discriminated
against base on her race or age with respect to applying for the Senior
Attorney positions.
Finally, Complainant claimed that MO-2 had assigned her heavy case files
on one date for her flexiplace work, in an attempt to create a hostile
work environment based on her physical disabilities. MO-2 testified
that Complainant was offered the electronic files for her use for work
at home, and stated that she preferred the paper files. Complainant did
not refute that she was offered electronic copies. She asserted that
she did not require a reasonable accommodation as envisioned by the
Rehabilitation Act, but that "the burden is on management to assign cases
in a reasonable manner and of a reasonable weight, not on the employee
to request accommodation from an unreasonably heavy case assignment."
We find that Complainant has not shown that the selection of those
particular cases for her assignment was done for reasons of Complainant's
disability, especially given the fact that Complainant had the option
to take the files home in electronic form.
Harassment
Finally, to the extent that Complainant also alleges that she was
subjected to a hostile work environment with respect to the matters set
forth in her complaint, we find that under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's
claim of hostile work environment must fail. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). A finding of a hostile work environment is precluded by
our determination that Complainant failed to establish that any of the
actions taken by the Agency were motivated by discriminatory animus.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(September 21, 2000). Additionally, we considered Complainant's version
of the facts of the December 11, 2008 incident between MO-1 and her, in
which MO-1 allegedly shouted at Complainant and slammed her office door,
and conclude that there is no evidence that racial animus was behind the
actions of MO-1. Although the behavior of MO-1 may have been hostile,
or even classified as unprofessional, there is nothing in Complainant's
contemporaneous account of the encounter that would lead us to conclude
that MO-1's behavior was racially discriminatory in nature.
CONCLUSION
Based on a thorough review of the record and the contentions of the
parties on appeal, including those not specifically addressed herein,
we AFFIRM the Agency's finding of no discrimination.
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
December 10, 2010
Date
1 We note that the exhibits referenced in the Agency's decision are those
contained in the Report of Investigation, a copy of which Complainant
received on September 22, 2009.
2 We assume, for the purposes of analysis only, without finding, that
Complainant is a qualified individual with a disability.
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0120102343
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102343