01986356
03-15-2000
Christine J. Cole, Complainant, Kenneth S. Apfel, Commissioner, Social Security Adminstration, Agency.
Christine J. Cole v. Social Security Adminstration
01986356
March 15, 2000
Christine J. Cole, )
Complainant, )
) Appeal No. 01986356
) Agency No. 97-0272-SSA
)
Kenneth S. Apfel, )
Commissioner, )
Social Security Adminstration, )
Agency. )
)
DECISION
INTRODUCTION
On August 21, 1998, Christine J. Cole (the complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated July 17, 1998, concerning her
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> Complainant received the FAD on July 23, 1998. The Commission
hereby accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,
659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against
her based on race, sex and retaliation when she was issued a three
day suspension.
BACKGROUND
Complainant was employed by the agency as a Claims Representative in the
agency's Selma, Alabama facility. Complainant initiated EEO Counseling
on January 17, 1997. She filed a formal complaint on March 11, 1997,
alleging discrimination on the bases of race (Black), sex (female)
and reprisal (prior EEO activity) when, in a letter dated January 10,
1997, she was harassed when the agency suspended her for three days,
effective January 28-30, 1997. The agency accepted the complaint for
investigation and processing. At the conclusion of the investigation, the
agency issued a copy of its investigative report and notified complainant
of her right to request an administrative hearing. After complainant
requested a decision on the record without a hearing, the agency issued
its FAD on July 17, 1998.
In its FAD, the agency found that the complainant had established
a prima facie case of race, sex and reprisal discrimination, but
had failed to establish a prima facie case of hostile environment
harassment because she was unable to demonstrate that she was subjected
to harassing conduct which was so severe that it interfered with her work
performance or created an intimidating, hostile or offensive environment.
The FAD further stated that complainant had failed to establish that the
legitimate, nondiscriminatory reason articulated by the agency for its
decision was a pretext for discrimination. Complainant timely appeals,
without comment.
ANALYSIS AND FINDINGS
At the outset, we note that, while the complainant claimed in her
complaint that the suspension was a form of harassment of her by the
agency, this case is more properly analyzed under a disparate treatment
model of discrimination.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). 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). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In response to complainant's claims of discrimination, the agency
presented evidence that it suspended complainant following its receipt
of a report, in November 1996, by the agency's Office of Investigations
into improper behavior engaged in by complainant. Beginning in May
1996, the agency was conducting an inquiry and investigation into
whether complainant had improperly accessed the Social Security records
of a co-worker's (CO-1) mother. At the same time, the agency was
investigating CO-1 for whether CO-1 had improperly accessed the Social
Security records of several of her own relatives. After the completion
of the investigation, and taking into account the complainant's and
the CO-1's explanations for their actions, the agency decided that the
complainant should be suspended for three days and CO-1 for five days.
We find that the agency has articulated a legitimate, nondiscriminatory
reason for its action.
Since the agency articulated a legitimate, nondiscriminatory reason for
its action, the burden returns to the complainant to demonstrate that the
agency's articulated reason was a pretext for discrimination. We find
that complainant has failed to do so. While complainant pointed out that
two other white co-workers had engaged in this same improper behavior,
accessing records for non-work related reasons, without being punished,
the agency provided acceptable explanations for its actions. First,
it noted that the white, female co-worker (CO-2) who had accessed her
relative's records had actually been suspended for one day. CO-2 had
mistakenly thought that she had a supervisor's permission to access
the records and was forthcoming about her reasons for engaging in the
action. In contrast, complainant consistently denied engaging in the
conduct, stating that she did not know that the records she had accessed
were those of CO-1's mother. The other co-worker noted by complainant,
a white male (CO-3), had not been punished, but at the time of the FAD
he was under investigation for the matter and the agency had not ruled
out any form of punishment. Therefore, the agency's determination
that complainant failed to establish that she was discriminated against
was correct.
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
March 15, 2000
______________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.