03a00079
03-27-2001
Sherry Luna, Petitioner, v. William A. Halter, Acting Commissioner, Social Security Administration, Agency.
Sherry Luna v. Social Security Administration
03A00079
03-27-01
.
Sherry Luna,
Petitioner,
v.
William A. Halter,
Acting Commissioner,
Social Security Administration,
Agency.
Petition No. 03A00079
MSPB No. CB-7121-99-0064-V-1
DECISION
On March 17, 2000, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning her claim
of discrimination in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. Petitioner, a Service
Representative, GS-8, alleged that she was discriminated against on the
basis of sex when the agency removed her from her position, effective
September 30, 1998.
The record indicates that petitioner was charged with failing to treat
the public with courtesy and consideration with respect to several
incidents that occurred on August 19, 1998. Specifically, the agency
alleged that petitioner unlocked the door at her workplace but did not
open it or tell the waiting public that they could come in; that she
was rude and impatient in her dealings with two Chinese customers who
did not speak English well and who had difficulty communicating with
her; that she spoke in a curt and unfriendly way to a female customer;
that she was rude to an elderly man who sought information relating to
his retirement; and that, in general, she projected the image of one
who hated her job and does not want to do it properly. In reaching its
conclusions, the agency considered petitioner's past disciplinary record
which consisted of a 5-day suspension and a written reprimand for the
same type of behavior. Petitioner chose to pursue this matter through
the agency's negotiated procedure.
After the agency prevailed at Steps 1 - 3, the matter was eventually
submitted to arbitration. On July 3, 1999, the arbitrator found that
the agency had proven its charge, that a nexus existed between the
petitioner's misconduct and the efficiency of the service, and that the
penalty of removal was reasonable. Petitioner filed a request for review
of the arbitrator's decision with the MSPB. The MSPB, noting the narrow
scope of its review, upheld the arbitrator's decision.
Among the petitioner's many contentions, she maintained that the
arbitrator improperly refused to hear her claim of sex discrimination,
i.e., sexual harassment. According to the record, petitioner raised
the issue for the first time at Step-3. The arbitrator ruled that he
did not have jurisdiction to entertain the claim because petitioner
had not properly raised it under the grievance procedure. The MSPB
deferred to the arbitrator's decision regarding the interpretation
of the agreement; however, the MSPB found that it was not precluded
from hearing petitioner's claim. According to petitioner, the District
Manager, the proposing official, recommended her for an outside job as
a bartender which she accepted. Thereafter, petitioner maintained that
the District Manager talked to his friends about her and had some of
them call her for dates. The District Manager denied the petitioner's
allegation that he had friends call her. The MSPB found that petitioner
failed to meet her burden of proof on this issue. According to the MSPB,
petitioner, apart from her �bare� assertions, presented no supporting
argument or evidence. Upon filing her petition for review with the
Commission, petitioner reiterated her contention that the arbitrator
erred by not allowing her discrimination claim. She also argued that
her prior disciplinary acts should not have been used to support her
removal because these matters were still being reviewed.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c). Based upon a thorough review of the record
and for the following reasons, it is the decision of the Commission to
CONCUR with the final decision of the MSPB finding no discrimination.
The Commission finds that the MSPB's decision constitutes a correct
interpretation of the laws, rules, regulations, and policies governing
this matter and is supported by the evidence in the record as a whole.
It is well-settled that sexual harassment in the workplace constitutes
an actionable form of sex discrimination under Title VII. In order to
establish a claim of sexual harassment, petitioner must show that: (1)
she belongs to a statutorily protected class; (2) she was subjected to
unwelcome conduct related to her sex, including sexual advances, requests
for favors, or other verbal or physical conduct of a sexual nature; (3)
the harassment complained of was based on sex; (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, i.e.,
supervisory employees knew or should have known of the conduct but
failed to take corrective action. Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57, 64-65
(1986); 29 C.F.R. � 1604.11(a)(d)(1995); Wibstad v. USPS, EEOC Appeal
No. 01972699 (August 14, 1998); McCleod v. SSA, EEOC Appeal No. 01963810
(August 5, 1999). 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 (March 8, 1994).
Regarding element (1), petitioner is a member of a statutorily protected
class. However, even accepting petitioner's statement that the District
Manager talked to his friends about her and had some of them call her for
dates, we find no persuasive evidence that the alleged actions had the
purpose or effect of unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment.
We also find that there is no nexus between the alleged behavior of
the District Manager and petitioner's subsequent removal. We note in
this regard that although the District Manager proposed her removal,
the deciding official was the District Manager's female supervisor,
who worked outside of that office.
With regard to the matters raised by the petitioner after she filed
her petition with the Commission, we note that notwithstanding
the arbitrator's refusal to address her claim of discrimination,
the MSPB did address the matter.<1> Additionally, with respect to
petitioner's contention that the agency should not have considered her
prior disciplinary record, we find that this matter does not involve the
MSPB's application of the anti-discrimination statutes and regulations.
Consequently, we will not address this issue.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing
reasons, it is the decision of the Commission to CONCUR with the final
decision of the Board finding no discrimination.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
____03-27-01__________________________
Date
1We also note that on page 370 of the arbitration transcript, petitioner's
representative stated that �[W]e as the Union would like to stipulate
at this point in time that any issues related to sexual harassment and
[petitioner] and the agency are not being pursued in this arbitration
hearing at this time.�