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