01974987
05-13-1999
Florence D. Black, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Florence D. Black v. Social Security Administration
01974987
May 13, 1999
Florence D. Black, )
Appellant, ) Appeal No. 01974987
v. ) Agency No. 0025-96
Kenneth S. Apfel, ) Hearing No. 260-97-9009X
Commissioner, )
Social Security Administration, )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") 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. See EEOC Order No. 960.001. In her
complaint, appellant alleged that she was discriminated against based on
her race (African-American) and reprisal for prior EEO activity when:
(a) from 1994 to 1995, she was harassed by her coworkers in an attempt
to get rid of her; and (b) from October 1994 to October 18, 1995,
she was given an inequitable amount of work and did not receive the
assistance provided other employees. For the reasons set forth below,
the Commission AFFIRMS the FAD.
Appellant timely sought EEO counseling and filed her instant EEO
complaint, which was accepted and investigated by the agency. Appellant
timely requested a hearing before an EEOC Administrative Judge ("AJ").
After the hearing, the AJ issued a recommended decision ("RD") finding
no discrimination.
The record reflects that appellant was employed as a Hearing Office
Clerk, GS-6, assigned to a unit which assisted a specific agency
Administrative Law Judge (the "ALJ"). All agency ALJs have at least
one clerk and a hearing assistant. The ALJ had two clerks, appellant
and a Caucasian clerk. Appellant believed that the ALJ's unit had 300
more cases than units headed by the other ALJs. However, the AJ found
that the record established that, with respect to the number of cases
per unit assigned, appellant's unit in fact ranked fifth out of the 15
units in 1994, and twelfth out of the 18 units in 1995. In addition,
the number of cases assigned to a unit was in part determined by the
willingness of the ALJ to accept them, the number of ALJs available at a
given time, the length of time spent by the ALJ in processing the cases,
and other matters. The AJ was not persuaded that appellant's unit had
a disproportionate number of cases, that the number of cases assigned
to the unit was connected with appellant's race, or that appellant's
race was a factor in her assignment to an ALJ with a large workload.
Insofar as appellant alleged that she was denied the assistance which
coworkers provided to each other, the AJ noted that others testified that
appellant was provided such assistance. While appellant's work was not
reassigned when she was absent, the AJ found that other similarly situated
employees did not have their work reassigned during their absences.
Accordingly, the AJ found that appellant failed to establish a prima
facie case of discrimination or reprisal with respect to allegation (b).
As for allegation (a), the AJ found that in January 1994, appellant
complained to her supervisor (the Supervisory Hearing Assistant) that
four coworkers were talking and laughing about her. Her supervisor
spoke with her for approximately one and a half hours, but appellant
refused to identify the coworkers and said she would resolve the
matter herself. Appellant never complained of harassment again.
At the hearing, appellant cited numerous acts of alleged harassment,
including being hollered at when she failed to answer a telephone,
being spoken to about selling tickets to a Black History Banquet,
having letters picked off her nameplate, and various other incidents
which appellant felt demonstrated that her coworkers failed to treat her
with the respect due her. Agency officials denied speaking to appellant
about her sale of banquet tickets, although other employees had been
reproached for selling food, Tupperware, cosmetics and other items.
The AJ found that appellant "was not the most credible witness" with
respect to allegations of harassment, in that "[d]ocumentation and
testimony frequently contradicted her" assertions. RD at 20. The AJ
found that, "[e]ven had employees not been as friendly as [appellant]
would like, [their actions were] unrelated to her race or prior EEO
activity." RD at 19. In this regard, the AJ noted that appellant's
coworkers were unaware of her prior EEO activity. Finally, in any event,
the AJ was unpersuaded that her coworkers' conduct was sufficiently severe
or pervasive as to alter the conditions of appellant's employment or to
create an intimidating, hostile or abusive work environment.<1>
The agency adopted the RD in its FAD. Appellant timely appeals, and
argues that her witnesses were credible, her statements were all true,
she was denied documents which would have proven that she did more work
than the other clerks, and that the "last minute" substitution of the
AJ for another EEOC Administrative Judge deprived her of a fair hearing.
After a thorough review of the record, the Commission finds that the
RD adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. The Commission notes that it generally
will not disturb the credibility determination of an AJ, who had
the opportunity to observe the witnesses. Esquer v. United States
Postal Service, EEOC Request No. 05960096 (September 6, 1996); Willis
v. Department of the Treasury, EEOC Request No. 05900589 (July 26, 1990).
In addition, the Commission finds that the record reflects that appellant
was given sufficient opportunity to prove her assertions and that there
was no abuse of discretion in the rulings made on discovery issues.
Finally, the Commission finds that appellant fails to indicate how she
was harmed by the need to reassign her case to the AJ. Accordingly, the
Commission discerns no basis to disturb the AJ's finding that appellant
failed to establish discrimination. Therefore, it is the decision of
the Commission to AFFIRM the FAD.
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:
May 13, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The Commission notes that the AJ correctly cited Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993), as holding that conduct creates a
hostile work environment when it is of a nature which a reasonable person
would find hostile or abusive, and which the victim perceives to be to
be hostile or abusive. However, the AJ also cited cases which had held
that the work environment must significantly and adversely affect the
psychological well-being of the employee. Harris overruled such cases,
holding that "[s]o long as the environment would reasonably be perceived,
and is perceived, as hostile or abusive, there is no need for it also
to be psychologically injurious." Id. at 22 (Citations omitted).