0120101344
09-12-2012
Sandra M. Brown, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Sandra M. Brown,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120101344
Agency No. ATL080601SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 14, 2010 final decision concerning her equal employment opportunity (EEO) complaint. At the time of events giving rise to this complaint, Complainant worked as a Paralegal Analyst, GS-0950-12, at the Agency's Office of Disability Adjudication and Review facility in Nashville, Tennessee. For the reasons that follow, we AFFIRM the Agency's final decision.
Complainant alleged that due to her race (Caucasian), sex (female), disability (depression and anxiety), age (59), and in reprisal for prior EEO activity she was subjected to non-sexual harassment and a hostile work environment when: (1) she was forced to move out of her office on April 28, 2008 and only given one day to downsize to an office that was 50% smaller; (2) she received a draft of her mid-year performance review which used benchmarks not applied to other employees, and lambasted her for untimely work product; and (3) she requested the specific benchmarks used for her progress review and a final copy of the mid-year progress review by email on May 30, 2008, but she had received neither by June 9, 2008.
At the conclusion of the EEO investigation, Complainant was provided a copy of the investigative file. When Complainant did not make an election between a final decision or a hearing before an EEOC Administrative Judge, the Agency issued a final decision (FAD). In its FAD, the Agency found that that Complainant did not satisfy her burden of proving that she was harassed and subjected to a hostile work environment because of any of the asserted protected bases. Additionally, the FAD reasoned that Complainant failed to show that she was subjected to conduct that was so severe and pervasive that it altered the conditions of her employment and created a hostile work environment.
On appeal, Complainant requests that the Commission reverse the FAD's finding that she was not subjected to unlawful discrimination.1 Complainant contends that evidence that supports her allegations is contained in the records, but was not considered by the Agency when it issued its FAD. Complainant alleges that the record contains witness statements which state that employees never received the new benchmarks that she received; the original mid-year performance appraisal in which her second level supervisor (S1) included comments in each performance element regarding the un-timeliness of Complainant's work product; and statements from three other older White employees attesting to the hostile treatment they experienced due to their age and race.
Record evidence establishes that Complainant was notified that all non-Administrative Law Judge (ALJ) staff occupying ALJ offices would need to relocate, as the office was expecting three new ALJs, on or about April 14, 2008. For a period of about one week, Complainant communicated with S1 and the Hearing Office Director (S2) about the move. Other than Complainant's conclusory statements regarding why and how she believes she was moved out of her previous office, she has not provided any evidence to suggest that discriminatory animus was involved. The evidence clearly establishes that Complainant was given more than one day to move, and that she was one of six employees who were asked to move in April 2008 as a result of office staffing changes.
With respect to Complainant's allegations that she received a draft of her mid-year performance review which used benchmarks not applied to other employees, and that as of June 9, 2008 she had not received a final copy, we find that Complainant has failed to establish unlawful discrimination. While Complainant was the only employee on record to receive a draft copy of their mid-year performance review, record evidence suggests that S1 provided Complainant with a draft copy because Complainant became upset during the review meeting. S1 ended the meeting before she and Complainant were done, and permitted Complainant to take a draft copy, which contained notes of Complainant's contentions regarding the performance review.
Finally, the record indicates that Complainant was not the only employee who did not receive a copy of her performance review in a timely manner. According to record evidence S1 had to take approximately 80 hours of leave due to a family emergency. As part of the standard mid-year review process, S1 discussed the review with the employee and then finalizes the draft making any necessary changes after the meeting. This process should have been completed by April 30th, but because of circumstances involving the emergency leave this did not occur in this case. Complainant has not established that this explanation was a pretext.
We also find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment and harassment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency discussed above were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
__9/12/12________________
Date
1 The Commission notes that Complainant is not appealing the FAD with respect to its findings on sex (female) and reprisal. Complainant noted in her statement on appeal that she acknowledges that there was insufficient evidence available to prove that she was subjected to discrimination on these bases.
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0120101344
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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