0120103119
01-25-2011
Leah S. Cranfield, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Leah S. Cranfield,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120103119
Agency No. ATL100600SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 3, 2010, dismissing her 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.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected her
to discrimination on the bases1 of race (Caucasian), religion (Not
Specified), and reprisal for prior protected EEO activity under an EEO
statute that was unspecified in the record when:
1. On April 30, 2010, management cautioned Complainant about going
shopping with her subordinates and giving gifts to them.
2. On May 11, 2010, Complainant's Lead Case Technician (LCT) advised
Complainant that she wanted Complainant's supervisor to attend LCT's
Performance Assessment and Communication System mid-year review when
Complainant conducted the meeting. Additionally, on May 14, 2010,
Complainant discovered when preparing LCT's mid-year discussion that
her name had been removed as LCT's rating official.
3. Complainant questioned the procedure for overtime for the LCT. When
Complainant brought this to management's attention, Complainant was
advised that the LCTs did not have to follow this procedure. Thereafter
Complainant spoke with another supervisor who stated her LCTs followed
the overtime procedure that Complainant questioned.
The Agency dismissed the claim for failure to state a claim, finding that
Complainant was not harmed by the alleged actions and that the actions
were not sufficiently severe or pervasive to constitute harassment.
On appeal, Complainant raises some additional incidents that were not
included in her Formal Complaint. In addition, Complainant argues that
the Agency's actions did result in harm, to include harm to her health,
as well as harm to her character and reputation. The Agency requests
that we affirm the FAD.
ANALYSIS AND FINDINGS
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995)(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
request for reconsideration denied EEOC Request No. 05970995 (May 20,
1999). Also, the trier of fact must consider all of the circumstances,
including the following: the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with
an employee's work performance. Harris, 510 U.S. at 23.
Following a review of the record, the Commission finds that the complaint
fails to state a claim under the EEOC regulations because Complainant
failed to show that she was subjected to unwelcome verbal or physical
conduct involving her protected classes, that the harassment complained of
was based on her statutorily protected classes, and that the harassment
had the purpose or effect of unreasonably interfering with her work
performance and/or creating an intimidating, hostile, or offensive
work environment. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982).
Nor has Complainant shown she suffered harm or loss with respect to a
term, condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). In this regard we note that while Complainant states
on appeal that she incurred harm to her health, the Commission has long
held that where an allegation fails to render an individual aggrieved,
the complaint is not converted into a cognizable claim merely because
complainant alleges physical and/or emotional injury. See Larotonda
v. United States Postal Service, EEOC Appeal No. 01933846 (March 11,
1994).
Finally, we find that Complainant does not state a claim of reprisal
because the incidents alleged are not "reasonably likely to deter
the charging party or others from engaging in protected activity."
EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20,
1998).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
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
January 25, 2011
__________________
Date
1 Complainant also included political affiliation as a basis of
discrimination. Such a basis, however, is not included under the laws and
regulations enforced by this Commission. See 29 C.F.R. � 1614.103(a).
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0120103119
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103119