0120100996
08-24-2012
Kimberly M. Barnes, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Kimberly M. Barnes,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120100996
Agency No. CHI090107SSA
DECISION
On December 24, 2009, Complainant filed an appeal from the Agency's November 24, 2009 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.; and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS Agency's final decision.
ISSUE PRESENTED
Whether Complainant established by a preponderance of the evidence that she was discriminated against and harassed in violation of Title VII and the Rehabilitation Act as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Development Clerk, GS-998-5, in the Muskegon Field Office, in Muskegon, Michigan. On December 7, 2008, Complainant filed a complaint alleging that the Agency discriminated against her based on her physical disability (broken ankle), mental disability (short-term memory loss and depression), and religion (Apostolic) when:
1. On November 7, 2008, she received an appraisal that was inaccurate and contained inappropriate comments from management; and
2. Management subjected her to harassment by making continual offensive comments to her.
The Agency accepted the complaint on March 13, 2009. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its FAD, the Agency determined that with regard to claim 1, Complainant failed to establish a prima facie case of disability discrimination. Specifically, the Agency found that Complainant failed to show that she was a qualified individual with a disability with regard to physical and mental impairments. The Agency found that with regard to Complainant's allegation of religious discrimination, management officials articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency determined that Management officials stated that the appraisal accurately reflected their evaluation of Complainant's performance and cited several specific examples as support for the rating of "Successful." The Agency found that Complainant failed to proffer any evidence to demonstrate that the Agency's articulated reasons were a pretext for discrimination.
With regard to claim 2, the Agency found that the following incidents comprised her claim of harassment: (a) management questioned and made comments about whether she was losing weight; (b) management told her that she did not want to learn new work tasks, and that she did not listen to management but did as she pleased; (c) she was told that she was too slow in calling out numbers and clearing the public out of the office; (d) she was yelled at by a manager who was detailed into her office for trying to contact her about a leave situation; (e) management told her that she was missing too much work due to her child's behavior in school; (f) for 15 days, the printer near her desk was broken, and she had to retrieve printouts from another printer; (g) management told her to take religious items off her desk; and (h) management accused her of not performing one of her assigned tasks.
The Agency determined that Complainant failed to establish that incidents (d), (e), and (h) occurred as alleged. With regard to the remaining incidents, the Agency determined that Complainant failed to demonstrate that these incidents occurred due to her membership in protected classes. The Agency found that Complainant failed to establish she was subjected to unlawful harassment as alleged. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues the merits of her allegations and requests that we find that she was discriminated against and harassed as alleged. The Agency requests that we affirm its finding of no discrimination or harassment.
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").
Disparate Treatment
With regard to claim 1, Complainant alleged disparate treatment discrimination based on her disabilities and religion. 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 Constr. 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, 441 U.S. at 804 n.14. 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). 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 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. See Hicks, supra.
Assuming arguendo that Complainant established a prima facie case of discrimination based on disability and religion, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The record reveals that in the "interpersonal skills" section of the appraisal, it was noted that Complainant did not maintain a productive work relationship in the office due to a "slight altercation" with a coworker. Complainant also had a difficult relationship with another coworker. The record further reveals that Complainant was instructed to limit conversations with the customers to work-related matters and that the Agency received complaints regarding the wait times incurred by customers due to Complainant's excessive "chatter." We find that nothing in the record demonstrates that the Agency's reasons are not worthy of credence. We further find that there is nothing in the record to show that the Agency's proffered reasons for its actions are a pretext for discrimination.
Harassment/Hostile Work Environment Claim
`
To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc. at 6 (March 8, 1994).
Here, Complainant asserted that based on her statutorily protected classes, management continuously subjected her to a hostile work environment. We find, however, that Complainant has not shown that she was subjected to a hostile work environment. Complainant has cited numerous incidents where Agency management took actions that appeared to be adverse to her; however, the Commission finds that Complainant has not shown that she was subjected to conduct that was sufficiently severe or pervasive enough to establish that a hostile work environment occurred. In addition, the Commission finds that Complainant failed to show that any of these incidents were unlawfully motivated by discriminatory or retaliatory animus. We note, for example, that although Complainant maintains that she was told to clear off the religious items from her desk, the record reveals that all employees were informed to clean up their work stations and that the Agency requested that the offices be sensitive to what the public sees when entering. After a review of the offices was performed, everyone was asked to remove excessive personal items in order to appear more presentable and professional to the public. There is no evidence to corroborate Complainant's contentions that the Agency did so because of the religious nature of the items she placed on her desk. Finally, we find that most of the incidents presented to support Complainant's harassment claim are not "unwelcome verbal or physical conduct," but rather everyday workplace interactions, which include professional disagreements, differences in management styles, and personality conflicts.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD finding that Complainant failed to establish that she was discriminated or harassed as alleged.
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
_8/24/12_________________
Date
2
0120100996
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100996