0120071016
09-13-2007
Socorro Gallegos, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Socorro Gallegos,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120071016
Agency No. 040321SSA
Hearing No. 306200500339x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 17, 2006, final order concerning her equal
employment opportunity (EEO) complaint claiming 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. Complainant claimed discrimination
based on national origin (Hispanic), sex (female), and reprisal for
prior protected EEO activity under Title VII when she was harassed and
subjected to a hostile work environment from March 2004.1 Specifically,
she cited several events: (1) her supervisor (male) (S1) approached her
from behind, called out her name, and placed his hands on her shoulders
on two occasions; (2) after S1 issued complainant a letter of reprimand,
he physically blocked the exit, preventing complainant from leaving;
(3) S1 verbally threatened complainant for working 30 minutes additional
credit time; (4) management threatened complainant with insubordination
after she misplaced a case; and (5) a lead case technician (E1) accused
Hispanic workers of taking extended lunch breaks, making mistakes,
and demeaned the intelligence of one Hispanic employee.
At the time of these events, complainant worked as a Legal Assistant/Case
Technician, GS-8, in the agency's Office of Hearings and Appeals in
San Antonio, Texas. Following the investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). The AJ conducted
a hearing and issued a bench decision, finding that the agency did not
discriminate against her. The AJ found that complainant failed to provide
sufficient or probative facts to support her claim; she also found that
complainant was not credible, i.e., she lied regarding one document in
her possession, and her testimony was contradicted by the union official,
another supervisor, or others, who were present at some of the events.
The AJ also found that complainant's witnesses lacked credibility,
since they did not have first-hand knowledge of any of the events.
The AJ found that, while complainant failed to establish a prima facie
case, the agency put forth explanations and articulated legitimate,
nondiscriminatory reasons, e.g., that S1 avoided complainant because
of her charges against him; that he did not remember placing his hands
on her shoulders; that another supervisor present at the time claim (2)
occurred stated that S1 did not block complainant's path or threaten her.
Complainant did not submit comments with her appeal. After a review of
the record in its entirety, including consideration of all statements,
it is the decision of the Commission to affirm the final agency order,
because the Administrative Judge's ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the
evidence, is supported by the record.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (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
___9/13/07_______________
Date
1 The agency initially dismissed the complaint for failure to state
a claim, but the Commission overturned that action and returned the
complaint for processing. EEOC Appeal No. 01A45501 (November 24, 2004).
2 EEOC Regulation 29 C.F.R. � 1614.405(a) provides that all post-hearing
factual findings by an Administrative Judge will be upheld if supported
by substantial evidence in the record. Substantial evidence is defined as
"such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted).
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0120071016
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071016