0120112927
10-19-2011
Nevada-Springs R. Storm, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Nevada-Springs R. Storm,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120112927
Agency No. ODAR-09-0152-SSA
DECISION
On May 10, 2011, Complainant filed an appeal from the Agency's May 5, 2011, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary, GS-7, with the Agency's Division of Workload Management (DWM), Office of Chief Administrative Law Judge (OCALJ), Office of Disability Adjudication and Review (ODAR) in Falls Church, Virginia.
Complainant filed an EEO complaint dated March 19, 2009, alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and color (brown) when:
1. Complainant was not afforded a 120-day detail assignment with a temporary promotion similar to Co-Worker 1 (Caucasian female); and,
2. Complainant was subjected to disparate treatment because of her hairstyle (dreadlocks) and the way she dressed (ethnic) when she caught a co-worker making fun of her hair.
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). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). With regard to issue (1), the Agency noted that the 120-day temporary promotion was for a Management Analyst position to provide assistance during the preliminary stages of hiring 157 new Administrative Law Judges (ALJs) for fiscal year 2008. Person A stated that because the role was only a 120-day temporary position, it did not need to be announced. Person A explained that Co-Worker 1, a Secretary, was assigned to the temporary position because she had the skills needed to perform the duties of the assignment and Co-Worker 1's division (Division of Field Operations) had performed similar work the previous year. Person A denied Complainant's claim that she had removed responsibilities away from Complainant that would have hindered her candidacy for the promotion and stated she only removed a data verification role from Complainant because it was not the responsibility of their department.
With regard to issue (2), Person B stated that sometime prior to April 14, 2008, she and Person C, the Director, approached Complainant about shells that had been woven into Complainant's hair and stated that the hairstyle was "quite amazing." The Agency noted that Person B denied that she or Person C laughed or snickered at Complainant's hair.
The Agency stated that Complainant offered no additional evidence to contradict management's response to her allegations. The Agency noted that while Complainant presented evidence of her work performance to indicate she was capable of performing the temporary assignment, she did not provide evidence that Person A's stated reason for the selection of Co-Worker 1 was a pretext to hide discrimination.
With regard to issue (2), the Agency stated this was not an adverse action; and, as a single statement made by a co-worker, the Agency stated this was not harassment. The Agency averred that taken as true, issue (2) cannot sustain a claim of either disparate treatment or one of harassment. The Agency's decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
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").
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. 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. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for selecting Co-Worker 1 to fill the temporary position. Specifically, the Agency stated that Co-Worker 1 one was assigned to the temporary promotion because she had the skills needed to perform the duties of the assignment and that Co-Worker 1's division had performed similar work the prior year. Complainant failed to show that the Agency's reason for its actions were mere pretext to hide unlawful discrimination.
With regard to issue (2), Person B stated that she and Person C noticed the shells in Complainant's hair and that Person C asked Complainant about her hair. Person B stated that Complainant's hair was "quite amazing" and she stated that neither she nor Person C laughed or snickered about Complainant's hair. We find the incident described in issue (2) was not sufficiently severe or pervasive to constitute harassment. Upon review, we find Complainant failed to show by a preponderance of evidence that she was subjected to discrimination or harassment based on her protected status.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination 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
10/19/11
__________________
Date
2
01-2011-2927
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112927