Norma N. Alvarado, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionDec 6, 2011
0120092962 (E.E.O.C. Dec. 6, 2011)

0120092962

12-06-2011

Norma N. Alvarado, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.




Norma N. Alvarado,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 0120092962

Hearing No. 480-2006-00161X

Agency No. SSA-98-0640

DECISION

On July 6, 2009, Complainant filed an appeal from the Agency’s June

12, 2009, final order 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 deems the appeal timely and accepts it

pursuant to 29 C.F.R. § 1614.405(a).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a Tele-service Representative at the Agency’s Tele-service Center

facility in Los Angeles, California.

On September 1, 1998, Complainant filed an EEO complaint alleging that she

was subjected to a hostile work environment based on her national origin

(Hispanic) when, in 1997 and 1998, she was harassed by a coworker (CW1).

Complainant said she believed the hostilities between CW1 and herself

began in August 1997. Complainant stated that on August 29, 1997,

another coworker (CW2; Hispanic male) had a plastic puppet that he used

to synchronize the mouth to CW1’s speaking. CW1 retorted that CW2 was

“ignorant and a moron for playing with that stupid toy.” Complainant

overheard the comments and believed that CW1 was offensive and mean to

CW2. Complainant asked CW1 to lower his voice. CW1 told Complainant to

stay out of the issue. Complainant asserted that following this incident,

CW1 was hostile towards her and continued to harass her.

Complainant then offered the following incidents of hostilities as

evidence regarding her claim of harassment:

• On October 16, 1997, during office training, CW1 threw training

material at Complainant.

• On November 10, 1997, CW1 was saying things in a foreign language

which Complainant believed was to harass her.

• On January 14, 1998, Complainant spoke to a co-worker (CW3) in

Spanish. She then heard CW1 say, “Is the Social Security Administration

an equal opportunity employer?”

• On March 16, 1998, Complainant asked a co-worker (CW4) about sign-in

procedures and CW1 made a “sneering face” at her.

• On March 22, 1998, CW1 interrupted Complainant while she was greeting

another Hispanic co-worker.

• On July 13, 1998, CW1 referred Complainant as a “slob-o-la”.

When Complainant asked what CW1 meant by the statement, she indicated

that CW1 responded with, “Oh, Norma, are we paranoid are we?”

Sometime later, Complainant and the Agency signed a settlement agreement

resolving her complaint. However, by letter to the Agency dated November

5, 2004, Complainant alleged breach of the settlement agreement, and

requested that the Agency specifically implement its terms. In its

December 16, 2004 FAD, the Agency concluded it had not violated the

settlement agreement. Based on the lack of supporting evidence, the Agency

determined that Complainant failed to establish her claim of breach.

Complainant appealed that decision to the Commission asking that her

complaint be reopened. In EEOC Appeal No. 01A52203, the Commission

determined that the settlement agreement was breached and ordered the

Agency to reinstate the complaint from the point where processing ceased.

Alvarado v. Social Security Administration, EEOC Appeal No. 01A52203

(Feb.9, 2006).

The matter was investigated and 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. On December 19, 2006, Complainant requested

that her complaint be amended to include a claim of discrimination on

the basis of national origin when, in September 2005, Complainant was

constructively discharged because of the actions of CW1. The record

indicated that Complainant applied for early retirement which began on

September 29, 2005.

On February 9, 2007, an AJ granted Complainant’s request to amend

her complaint. The AJ notified Complainant that she had 45 days to

file an appeal with the Merit Systems Protection Board (MSPB) based on

Complainant’s claim of constructive discharge. On March 20, 2007,

Complainant filed a mixed case appeal with the MSPB. On August 1, 2007,

the MSPB found that Complainant failed to establish that her claim that

her retirement was involuntary.

Over the Complainant's objections, the AJ assigned to the case granted

the Agency’s March 20, 2008, motion for a decision without a hearing

and issued a decision without a hearing on June 2, 2009.

As to Complainant’s claim of alleged harassment in 1997 and 1998,

the AJ noted that the friction between Complainant and CW1 began as a

personal dispute which Complainant failed to show was connected to her

national origin or any other protected basis. The AJ did note that after

the settlement agreement was signed in 2002, CW1 commented to Complainant

on two occasions, “we’re not in wetback city.” However, the AJ

found that even if proven to have occurred, the demeaning comments were

isolated in nature, occurred at unidentified times, and were not shown

to be part of a pervasive pattern of harassment. Based on the record,

the AJ concluded that Complainant failed to show that she was subjected

to events, if taken as a whole, created a hostile work environment.

The AJ then turned to Complainant’s claim of constructive discharge.

The AJ found that Complainant had not shown that she was subjected to

a discriminatory hostile work environment which forced her departure

from the Agency. Therefore, the AJ concluded that Complainant did not

show that her retirement in September 2005, constituted a constructive

discharge.

The Agency subsequently issued a final order adopting the AJ’s

finding that Complainant failed to prove that the Agency subjected her to

discrimination as alleged. Complainant appealed the Agency’s decision.

Complainant requested that that the Commission provides her with a formal

hearing in order to present documentation, evidence and witnesses.

We note that Complainant did not explain or proffer what evidence any

documents, evidence or witnesses would provide.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. The Commission's

regulations allow an AJ to issue a decision without a hearing when

he or she finds that there is no genuine issue of material fact.

29 C.F.R. § 1614.109(g). This regulation is patterned after the

summary judgment procedure set forth in Rule 56 of the Federal Rules of

Civil Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive legal

and evidentiary standards that apply to the case, there exists no genuine

issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). In ruling on a motion for summary judgment, a court’s

function is not to weigh the evidence but rather to determine whether

there are genuine issues for trial. Id. at 249. The evidence of the

non-moving party must be believed at the summary judgment stage and all

justifiable inferences must be drawn in the non-moving party’s favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case. If a case can

only be resolved by weighing conflicting evidence, issuing a decision

without holding a hearing is not appropriate.

On appeal, Complainant has not established that there are material

facts in dispute that require resolution through hearing. Accordingly,

we find no error in the AJ’s decision to render a decision based on

the investigative record without a hearing.

Hostile Work Environment

It is well-settled that harassment based on an individual’s national

origin is actionable. See Meritor Savings Bank FSB v. Vinson, 477

U.S. 57 (1986). In order to establish a claim of harassment under that

bases, Complainant must show that: (1) she belongs to the statutorily

protected class; (2) she was subjected to unwelcome conduct related to

her membership in that class; (3) the harassment complained of was based

on Complainant’s national origin; (4) the harassment had the purpose

or effect of unreasonably interfering with her work performance 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).

Upon review of the record, we find that the events alleged by Complainant

in support of her claim of harassment, when taken as a whole, are not

sufficiently severe or pervasive enough to establish that she had been

subjected to a hostile work environment. As the AJ noted, Complainant

indicated that the difficulties with CW1 began as a personal dispute when

in 1997, Complainant told CW1 to lower his voice and that his actions

toward CW2 were offensive and mean. There is little support in the

record for Complainant’s contention that CW1’s hostility towards

her was because of her national origin rather than a personal dispute.

Although Complainant has alleged long after she filed her complaint that

CW1 used the derogatory term “wetbacks” on several occasions, she has

not provided sufficient detail of these occasions of the use of this word,

including when it occurred, to establish a nexus between the comment and

the incidents of alleged harassment in 1997 and 1998. Thus, we have to

find that these were isolated incidents even if proven true. Based on

the record, we find that the AJ correctly determined that Complainant

had not shown that she was subjected to a discriminatory hostile work

environment in 1997 and 1998.

Constructive Discharge

Complainant amended her claim of discrimination to include a claim of

constructive discharge when in September 2005, Complainant resigned.

The central question in a constructive discharge case is whether

the employer, through its unlawful discriminatory behavior, made

the employee's working conditions so difficult that any reasonable

person in the employee's position would feel compelled to resign.

Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17,

2002). The Commission has established three elements which a complainant

must prove to substantiate a claim of constructive discharge: (1)

a reasonable person in the complainant's position would have found

the working conditions intolerable; (2) conduct that constituted

discrimination against the complainant created the intolerable working

conditions; and (3) the complainant's involuntary resignation resulted

from the intolerable working conditions. See Walch v. Dep’t of Justice,

EEOC Request No. 05940688 (Apr. 13, 1995).

Upon review, again, we find that CW1’s conduct was

inappropriate. However, it did not rise to the level of creating

intolerable working conditions. Therefore, we determine that the

AJ correctly held that Complainant failed to establish her claim of

constructive discharge.

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 final order implementing the AJ’s decision finding

no discrimination.

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

December 6, 2011

__________________

Date

2

0120092962

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120092962