0120103185
01-21-2011
Lorna G. Bibbie, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Lorna G. Bibbie,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120103185
Agency No. CHI100571SSA
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated July 8, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
In her formal EEO complaint, Complainant alleged that the Agency subjected
her to ongoing discriminatory harassment on the bases of sex (female),
color (light-skinned), age, and reprisal for prior protected EEO activity
of such a nature that it created a hostile work environment. As examples
of the harassment, Complainant provided the following incidents:
1. On March 18, 2010, while Complainant was in the middle of a phone
call, the Assistant Module Manager (AMM) hovered over her and loudly
and rudely asked if she was working late and acted as if she was going
to physically lash out at Complainant.
2. On April 29, 2010, during Complainant's mid-year review, the AMM
informed her that she was doing her work all wrong, and that all her work
was going to be reviewed for 30 days and that when Complainant disagreed
with the performance assessment, the AMM became angry, frustrated, raised
her voice and leaned into Complainant's personal space and appeared to
want to physically lash out at Complainant.
3. The Module Manager (MM) gave Complainant a "recommended with
reservation" rating for a position she applied for in 2009.
The Agency dismissed the complaint for failure to state a claim, asserting
that the alleged incidents could not establish a hostile work environment.
On appeal, Complainant raises additional incidents of harassment, some
occurring prior to, and some subsequent to, the incidents at issue herein.
The Agency requests that we affirm the FAD.
ANALYSIS AND FINDINGS
In considering whether any of the claimed actions, whether individually
or collectively, constitute harassment, the Supreme Court, in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993), reaffirmed the holding
of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment
is actionable if it is sufficiently severe or pervasive that it results
in an alteration of the conditions of the Complainant's employment. See
EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3.
Furthermore, in assessing whether the complainant has set forth an
actionable claim of harassment, the conduct at issue must be viewed in
the context of the totality of the circumstances, considering, inter
alia, the nature and frequency of offensive encounters and the span of
time over which the encounters occurred. See 29 C.F.R. � 1604.11(b);
EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050,
No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request
No. 05970077 (March 13, 1997). However, as noted by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple
teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the 'terms and
conditions of employment." The Court noted that such conduct "must be
both objectively and subjectively offensive, [such] that a reasonable
person would find [the work environment to be] hostile or abusive,
and . . . that the victim in fact did perceive to be so." Id. See also
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark
County School Dist. v. Breeden, 532 U.S. 268 (2001).
Following a review of the record, the Commission finds that the incidents
referred to in her complaint were offered by Complainant as some, but
not all, examples of the alleged ongoing harassment. A review of the
EEO counseling report related to her complaint reveals that Complainant
provided many more examples, alleging that she had been subjected to
ongoing harassment since 2007 when her manager was "constantly" rude,
disrespectful, accusatory and unprofessional in tone and manner, as
well as withholding needed information, falsely treating her as having
performance and conduct issues, and treating her differently with respect
to attendance and leave matters. Complainant asserted she reported
the alleged pattern of harassment to upper level management without
effect. On appeal, Complainant submitted detailed accountings of many
of these alleged incidents.
Based on a fair reading of the EEO counselor's report in conjunction with
the EEO complaint, we conclude that Complainant had alleged a pattern of
discriminatory harassment that is sufficiently severe and/or pervasive
to state a cognizable claim of hostile work environment that requires
further investigation.
We therefore REVERSE the FAD and REMAND the hostile work environment
claim further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (hostile work
environment) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency
shall acknowledge to the Complainant that it has received the remanded
claims within thirty (30) calendar days of the date this decision
becomes final. The Agency shall issue to Complainant a copy of the
investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this
decision becomes final, unless the matter is otherwise resolved prior
to that time. If the Complainant requests a final decision without
a hearing, the Agency shall issue a final decision within sixty (60)
days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant.
If the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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. 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 21, 2011
__________________
Date
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0120103185
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103185