0120092687
10-21-2011
Phyllis Burnett, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Phyllis Burnett,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120092687
Hearing No. 450-2008-00235X
Agency No. DAL-07-0356-SSA
DECISION
On June 12, 2009, Complainant filed an appeal from the Agency’s May 12,
2009, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant
had not established that she had been discriminated against based on race,
age, disability, or reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Senior Case Technician/Legal Assistant at the Agency’s Dallas
Downtown Hearing Office, Office of Disability Adjudication and Review in
Dallas, TX. On May 10, 2007, Complainant filed an EEO complaint alleging:
1. that the Agency discriminated against her on the bases of race
(Caucasian), disability (degenerative disk disease, severe spinal
stenosis, and foramina narrowing), and age (60) when the Processing
Group Supervisor (PGS) subjected her to a hostile work environment.
Specifically, she alleges that she was continually singled out, her
work performance was micromanaged, she was addressed in a threatening
manner, she was purposely assigned a task late in the day (which left
her little or no time to complete it), she was chastised for working
past 6:00 p.m. in order to complete a task, attempts to defend herself
were met with threats of being written up for insubordination, and the
PGS “disrespected her” in front of other employees; and
2. that the Agency discriminated against her on the bases of race
(Caucasian), disability (degenerative disk disease, severe spinal
stenosis, and foramina narrowing), age (60), and reprisal (for prior
protected EEO activity under an EEO statute that was unspecified in the
record) when she was issued a written reprimand on April 20, 2007.
The Agency accepted the complaint and conducted an investigation. 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 requested
a hearing.1
On September 15, 2008, the Agency Representative filed a Motion
to Compel Discovery Responses. This Motion was sent by e-mail to
Complainant's Representative and by first-class mail to Complainant
and her Representative. Complainant and her Representative never filed
a response to the Agency's Motion to Compel. On September 24, 2008,
the Administrative Judge issued an Order to Compel Discovery which was
sent to Complainant, her Representative, and the Agency Representative,
ordering Complainant to respond to the Agency's discovery requests no
later than October 15, 2008. Complainant, again, did not respond to
the Agency's discovery requests and filed no response or objections to
the Order to Compel Discovery.
On October 5, 2008, the Agency Representative filed a Motion for
Dismissal and/or for a Decision Without a Hearing. This Motion was sent to
Complainant's Representative by both e-mail and first-class mail on that
date. It was also sent to Complainant by first-class mail. Complainant's
Representative filed a response to the Motion on October 10, 2008.
On October 21, 2008, the Agency Representative filed a Motion for
Dismissal, or other Relief Pursuant to 29 C.F.R. §1614.109(f)(3), citing
Complainant's failure to comply with the Administrative Judge's Order to
Compel Discovery. This motion was sent to Complainant's Representative
by both e-mail and first-class mail, with a copy sent to the Complainant
by first-class mail.
In a Scheduling Notice and Order dated June 25, 2008, the parties were
notified that a Pre-Hearing Conference would be held on October 27, 2008,
and that the required Pre-Hearing Reports needed to be submitted no later
than five days prior to the Conference. Complainant failed to submit
a timely Pre-Hearing Conference Report. At the Conference, Complainant
failed to provide good cause for her untimely submission and failure to
comply with the Administrative Judge's Order to Compel Discovery.
On October 31, 2008, Complainant's Representative filed a response to the
Agency's Motion for Dismissal or Other Relief, asserting that Complainant
received the Order to Compel Discovery on the very same day as the
Agency's Motion to Compel Discovery, despite having received an e-mail
copy of the Agency's motion on the day that it was mailed. Complainant
never provided the requested discovery. Complainant's Representative
alleged, in his October 31, 2008 Response, that Complainant did not
possess the necessary documents because she gave them to the investigator.
The documents were not included in the report of investigation.
On November 5, 2008, the AJ denied Complainant’s hearing request on
the grounds that Complainant repeatedly failed to provide documents in
response to the Agency's discovery requests and failed to comply with the
AJ’s Acknowledgment and Order, Scheduling Notice and Order, and Order
to Compel Discovery. The AJ remanded the complaint to the Agency, and
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.
In the Final Agency Decision (FAD), the Agency found that the record did
not support a finding that the PGS addressed Complainant in a threatening
manner, nor did the PGS “disrespect” her in front of other employees.
However, the Agency did concede: (1) that Complainant was singled out
and micromanaged, (2) that she was assigned a task late in the day, (3)
that that Complainant was “chastised” for working past 6:00 p.m. to
complete the project, and (4) that she was subsequently threatened with
a write-up for insubordination when Complainant tried to defend herself.
The Agency found that Complainant established membership in her protected
classes concerning race, age, and disability, and that Complainant met
the burden of establishing that the conduct experienced was subjectively
and objectively unwelcome. However, the Agency ultimately found that
Complainant did not prove that she was subject to the conduct because
of her protected classes. Moreover, the Agency found that Complainant
failed to demonstrate that the conduct at issue was sufficiently severe
or pervasive as to constitute a hostile work environment.
With respect to issue 2, the Agency found that, although Complainant had
demonstrated a prima facie case of discrimination, it had legitimate,
nondiscriminatory reasons for issuing a reprimand. Specifically, the
Agency found that Complainant had: (1) failed to complete her assignment
in a timely manner; and (2) continued to use unauthorized overtime,
despite having received repeated warnings. In regard to Complainant’s
burden to establish pretext, the Agency found that Complainant’s
attempts failed because she did not show that the proffered legitimate,
nondiscriminatory reasons were false. The Agency also pointed out: (1)
that Complainant did not refute inadequately completing her assignment;
and (2) that Complainant admitted to taking unauthorized overtime.
CONTENTIONS ON APPEAL
On appeal, Complainant did not address the merits of the FAD and instead
requested a hearing on the merits of the case. Specifically, Complainant
contends that: (1) she was denied the opportunity to provide testimony
and cross-examine witnesses; (2) she had attempted to work with the AJ
to procure the requested documents; (3) some of the documents requested
could not be located; and (4) the investigator assigned to her case did
not “ask the right questions.”
The Agency moved to dismiss the appeal on timeliness grounds and on
the grounds that the complaint was moot. The Agency contends that:
(1) Complainant no longer works in the same office with the PGS; and
(2) the letter of reprimand placed in Complainant’s file was set to be
removed after one year, a period of time which had passed by the filing
of the Agency’s brief.
STANDARD OF REVIEW
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 Chap. 9, § VI.A. (Nov. 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”)
ANALYSIS AND FINDINGS
There is no evidence in the record demonstrating an untimely appeal.
The Agency issued the Final Agency Decision on May 12, 2009 and the
Complainant filed her appeal on June 12, 2009. The Agency claims to have
received the Brief in Support of Request for Review on July 15, 2009;
however, the record does not include mailing records to corroborate
this assertion.
There is no evidence in the record demonstrating that the appeal is moot.
The record reflects a request for compensatory damages. We have held
that an agency must address the issue of compensatory damages when a
complainant has presented objective evidence of compensatory damages, and
that the damages were related to the alleged discrimination. See Jackson
v. U.S. Postal Service, EEOC Appeal No. 01923399 (Nov. 12, 1992); request
to reconsider denied, EEOC Request No. 05930386 (Feb. 11, 1993). Where, as
here, a complainant requests compensatory damages during the processing of
the formal complaint, an agency is obliged to request from a complainant
objective evidence of such damages. In this case, the Agency did not
request objective evidence of compensatory damages from Complainant.
If Complainant were to prevail in her claim, the possibility of an award
of compensatory damages exists, and so Complainant's claim is not moot.
See Glover v. U.S. Postal Serv., EEOC Appeal No. 01930696 (Dec. 9, 1993).
We affirm the AJ’s decision to issue sanctions denying the hearing
request. Our regulations state that the AJ is given wide latitude in
directing the terms of EEOC administrative hearings. See 29 C.F.R. §
1614.109; EEO MD-110, Ch. 7, § II.D. Because no evidence in the record
demonstrates an untimely or moot appeal, we review this case de novo.
Claim 1, Hostile Work Environment
To establish a claim of harassment, a complainant must show that: (1)
he or she belongs to a statutorily protected class; (2) he or she was
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on the complainant’s statutorily protected class; (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
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, 903-05 (11th Cir. 1982).
Further, the incidents must have been "sufficiently severe or pervasive
to alter the conditions of [complainant's] employment and create an
abusive working environment." Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993). 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 Systems Inc., EEOC Notice
No. 915.002 at 6 (Mar. 8, 1994).
It is not disputed that Complainant belongs to the statutorily
protected classes that she proffers.2 Moreover, it is not disputed that
Complainant met the burden of establishing that the conduct experienced
was subjectively and objectively unwelcome.
However, we find that the facts presented, regardless of merit, are
insufficient to state a claim of harassment. Complainant has not shown
any of the alleged conduct to be related to her race, disability, or age.
Complainant does not put forth any statements or documents from the PGS
referencing Complainant’s race, age, or disability. While Complainant
does allege that the PGS treats Complainant’s young, non-disabled,
African-American co-workers more favorably, this assertion is denied by
the PGS and is not corroborated in the record by witnesses.
Complainant specifically alleged that she was continually singled out,
her work performance was micromanaged, she was addressed in a threatening
manner, she was purposely assigned a task late in the day (which left her
little or no time to complete it), she was chastised for working past
6:00 p.m. in order to complete a task, attempts to defend herself were
met with threats of being written up for insubordination, and the PGS
“disrespected” her in front of other employees. Complainant has not
shown that these incidents rise to the level of a hostile environment of
such a severe or pervasive nature as to alter the terms and conditions of
her employment. But see Voss v. Dep’t of Homeland Security, EEOC Appeal
No. 0720100001 (August 25, 2011) (finding that complainant was subjected
to discriminatory harassment based on age and disability when supervisors
assigned her menial and physically demanding tasks, talked to and about
her in an inappropriate manner, and made disparaging remarks about her);
Crawford v. U.S. Postal Service, EEOC Appeal No 0720070020 (March 5,
2010) (finding that complainant was subjected to sexual harassment and
reprisal when a coworker subjected him to obscenities and comments about
his sexual performance on a near daily basis, repeatedly asked him out
and talked about him to other employees, and complainant’s attempts
to stop the harassment resulted in his assignment being changed and in
discipline for him).
Moreover, 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. Dep’t of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); Banks v. Dep’t of Health and
Human Services, EEOC Request No. 05940481 (Feb. 16, 1995). Therefore,
we find that Complainant has not shown that she was subjected to unlawful
harassment.
Claim 2, Reprimand Based on Disparate Treatment
To prevail in a disparate treatment claim such as the Complainant’s
second claim, a complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). A complainant must initially establish a prima
facie case by demonstrating that he or she was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts
of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14.
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
a complainant must prove, by a preponderance of the evidence, that the
agency’s explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In regard to Complainant’s disparate treatment claim, Complainant
failed to demonstrate a prima facie case of discrimination. The record
does not show that similarly-situated individuals, not of Complainant’s
protected group, were treated more favorably. Regardless, the Agency,
in its brief, cited a legitimate, nondiscriminatory reason for issuing
Complainant a written reprimand. Specifically, the Agency justified the
reprimand by showing that Complainant failed to complete her assignment
in a timely manner and continued to use unauthorized overtime, despite
having received repeated warnings. Complainant failed to follow the
PGS’s instructions and failed to timely complete work on a docket
assigned to her. As a result of Complainant’s inability to complete the
assignment on time, the Administrative Law Judge assigned to the case was
required to utilize telephonic expert testimony instead of live testimony.
The reprimand also noted Complainant's continued failure to leave the
office by 6:00 p.m., despite that Complainant was told that she was not
to stay in the office past 6:00 p.m. unless overtime had been approved.
Moreover, Complainant failed to establish pretext. Complainant did
not attempt to show that the proffered legitimate, nondiscriminatory
reasons were false. Complainant did not refute inadequately completing
her assignment and openly admitted to taking unauthorized overtime.
In sum, we find that Complainant has not shown that she was discriminated
against as alleged. To the extent that Complainant alleged that
she was subjected to a hostile work environment, we find, under the
standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993), that Complainant's claim of hostile work environment must
fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 (March 8, 1994). A finding of a hostile work
environment is precluded based on our determination that Complainant
failed to establish that any of the actions taken by the Agency were
motivated by discriminatory animus. See Oakley v. U.S. Postal Service,
EEOC Appeal No. 01982923 (Sept. 21, 2000). Finally, in regard to the
disparate treatment claim, our independent review of the record shows
that, despite the Complainant’s failure to state a prima facie case,
the Agency’s legitimate, nondiscriminatory reasons were supported by
the evidence adduced in the report of investigation. Complainant did not
submit any argument on appeal, and so has not shown how the Agency’s
reasons may be pretext for discrimination.
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 decision.
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
October 21, 2011
Date
1 Complainant’s hearing request was docketed by the Dallas District
Office under Hearing No. 450-2008-00235X and was also inadvertently
docketed by the San Antonio Field Office as Hearing No. 451-2008-00171X.
The AJ in Hearing No. 451-2008-00171X dismissed that hearing request
and all his prior orders on October 2, 2008. The case was processed
under 450-2008-00235X.
2 We assume, without so finding, that Complainant is an individual with
a disability and is therefore covered by the Rehabilitation Act.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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