Tammie M. Ballard, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionOct 29, 2010
0120100255 (E.E.O.C. Oct. 29, 2010)

0120100255

10-29-2010

Tammie M. Ballard, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.


Tammie M. Ballard,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 0120100255

Agency No. DAL080651SSA

DECISION

On October 21, 2009, Complainant filed an appeal from the Agency's September 21, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Legal Assistant/Case Technician GS-0986-5 at the Agency's Office of Disability Adjudication and Review facility in Oklahoma City, Oklahoma. Complainant had been hired in July 2006 under a two-year program. On August 8, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when:

1. Complainant was subjected to a hostile work environment;

2. In June 2008, Complainant received a performance appraisal that contained negative information; and

3. Complainant's two-year appointment under the Federal Career Intern Program was not renewed when it expired and Complainant was not authorized to work after July 8, 2008 but was terminated on that date.

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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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. Specifically, the Agency found that Complainant failed to provide any evidence or witness testimony to dispute management's contention that she was not harassed or that the June 2008 appraisal and the July 2008 removal were legitimate. The Agency further found that Complainant failed to provide any evidence or testimony indicating that the Agency's action were motivated by discriminatory animus. From this decision, Complainant appeals. Complainant provides no argument on appeal and the Agency requests that we affirm the FAD.

ANALYSIS AND FINDINGS

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 Chapter 9, � VI.A. (November 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").

Performance Appraisal

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). Complainant's supervisor (S1: American Indian1, female) averred that:

I believe the Performance Discussion Statement accurately reflected the deficits in [Complainant's] mid year performance, which included difficulty adapting to changes in the workplace and new technology, such as processing electronic files; difficulty learning new material and applying it accurately while using appropriate technology and automation tools; and difficulty using appropriate technology efficiently.

Report of Investigation (ROI), Exhibit 7, p. 8.

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Following a review of the record, we find that Complainant has not met this burden. Complainant said:

I was under the impression that I was doing a good job and that my performance was always fully successful. My previous evaluations had been fully successful, including the one issued by [S1] in January 2008. [S1] never counseled me for performance issues or indicated that I was not succeeding in performing my duties satisfactorily. I believe that after the May 1, 2008 box-cutter incident [S1] decided that she had an issue with me because I contacted the FPS.

ROI, Exhibit 5, p. 21.

While Complainant may have disagreed with the comments on her evaluation, she has not shown that the Agency's articulated reason for its action is a pretext for discrimination. We further note that Complainant's statement that she believed that S1 "had an issue with" Complainant because Complainant contacted the FPS about the box-cutter incident contradicts her contention that S1's actions were motivated by discrimination based on sex and/or race.

Termination

In order to establish a prima facie case of discrimination based on race and/or sex regarding her removal, Complainant must show that: (1) she was a member of a protected group; (2) she was qualified for the job she was performing; and, (3) she was satisfying the normal requirements of her position and was discharged while others similarly situated, but not within her protected group were retained. Thompkins v. Morris Brown College, 752 F.2d 558, 562 (11th Cir. 1985).

Following a review of the record, we find that Complainant has not established a prima facie case. We note that S1 averred that no other employee under the Federal Career Intern Program (FCIP), which is the program Complainant was hired under, was retained beyond the two year duration of their term. See Exhibit 7, p. 9. While Complainant mentions that other employees hired after her were retained, she has not shown that these employees were hired under the FCIP, and S1 averred that the employees in question "where hired as permanent employees, which is distinguishable from [Complainant's] hiring status." Id., p. 7. Nor has Complainant identified other employees hired under FCIP who were retained. In other words, she has not identified any coworkers who were similarly situated as herself, but who were treated differently.

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).

Complainant alleged that she was subjected to a hostile work environment and harassment. To establish a prima facie case of hostile environment harassment, Complainant must show the existence of four elements: (1) she is a member of a statutorily protected class; (2) 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 statutorily protected class; and (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. Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.

The Agency summarized Complainant's allegations of harassment as follows:

i. Complainant was assigned duties different from those of other employees;

ii. Complainant was treated differently from others because she has academic degrees, and her coworkers felt threatened because it did not take her long to catch on to new training;

iii. Complainant was required to complete a daily log sheet of her activities, which were tracked, while others were not required to do so;

iv. Complainant handled more than her share of the office work;

v. Complainant was assigned to two judges as opposed to other technicians who were assigned to one judge;

vi. Complainant was not allowed to work from 6:30 a.m. to 4:30 p.m. while a more recently hired employee was allowed to work those hours;

vii. Complainant was watched and treated unfairly after a co-worker approached her in an aggressive manner with a box-cutter knife;

viii. Complainant was removed from the Agency while employees who were hired after her were allowed to continue to work;

ix. Seven new case technicians were hired to perform work that Complainant had already been trained to perform;

S1 averred that Complainant was unable to perform "most of the job duties," ROI, Exhibit 7, p. 1, of her position in a satisfactory manner, "in particular she could not perform the more complex duties of her position." Id. S1 said that because of this, Complainant "had limited work assignments, but all within her position description." Id. However, S1 denied that Complainant was given duties that others were not given. See id., p. 2. Another supervisor (S2: Race and sex unspecified) averred that she did not believe that Complainant was treated unfairly, "in fact it seemed that she may have been treated better," ROI, Exhibit 8, p. 1, than her similarly situated colleagues. S2 further stated that she never heard anyone say anything derogatory towards Complainant and that she was given the same tasks as her colleagues. See id.

With regard to the log sheet, S1 said that on occasion Complainant seemed to have no work to do, so "because I needed to get a better idea of what duties she was performing and the time it took for her to perform these duties, I created a log sheet for a one week period that I asked her to complete, listing her daily activities." ROI, Exhibit 7, p. 2. S1 said that "given [Complainant's] limited duties, additional log sheets would have provided me no new information" but that "it is possible that [Complainant] did not fully understand my request for a one-time log sheet." Id., p. 3. S1 further noted that Complainant already kept logs or her own, and when she continued to give S1 those additional logs, S1 assumed "such logs were copies of the logs that she told me she was keeping for herself." Id.

S1 next averred that she was not aware of Complainant handling more than her share of the office work. See id. With regard to being assigned to two judges, S1 denied that Complainant was assigned to any judge. With regard to the box-cutter incident, S1 said that Complainant and another coworker (CW1, race unspecified, female) who also worked under S1 were arguing over a work matter. S1 said that, as the supervisor of both employees, she was called over to the argument. She said that CW1 was using a box-cutter to open boxes and that both Complainant and CW1 were upset by the argument but that, at the time, Complainant "made no allegation that [CW1] had tried to injure her with the box-cutter or that she felt physically threatened by the box-cutter." Id., p. 5. S1 further averred:

In the days that followed, rumors were rampant that [CW1] had threatened [Complainant] by waving the box-cutters in her face. Without notice to me, [Complainant] contacted one of the FPS officers, who was a personal friend of hers, to come and take the box-cutters. He removed the box-cutters from the office without my permission. Later, I was informed that he did so as a personal favor to her and not in his capacity as an FPS officer, conducting any kind of investigation. I subsequently spoke with [Complainant] about these rumors. She then said that there were witnesses who saw CW1 wave the box-cutters in her face. I interviewed all these witnesses and none could corroborate her story. No one saw any box-cutters in [CW1's] hand or saw [her] make any waiving motion in [Complainant's] face, which included the security guard who was sitting about 20 feet away, outside the glassed in reception area. Most stated they saw the two women talking, nothing more. I also noted that [Complainant] had remained in the glassed in reception area, during this argument, when she could have easily stepped out the door to the public area and notified the security guard, which she did not do. [CW1] admitted she had the box-cutters in her hand, but vehemently denied threatening [Complainant] with them. Taking all into consideration, I determined that both employees acted improperly and should have handled the situation differently, but that neither party physically harmed or threatened to physically harm the other party. . . . In conclusion, I do not feel that [Complainant] was watched or treated unfairly following this incident.

Id., pp. 5-6.

With regard to the coworkers who were hired after Complainant and retained at the Agency, S1 said that the two employees were hired as permanent employees, unlike Complainant who was hired under a two-year program. See id., p. 7. With regard to the seven new hires, S1 agreed that these hires were made, but that "they had nothing to do with [Complainant's] status." Id. With regard to the fact that Complainant was not retained, S1 averred that no employee hired under the FCIP program that Complainant was hired under, was retained after the end of their two year program. See id., p. 9.

Following a review of the record, we find that Complainant has not established a prima facie case of hostile environment harassment. While Complainant has satisfied the first prong of the four-part test enunciated in Humphrey, she has not satisfied the remaining three prongs. Specifically, Complainant has not shown she was subjected to harassment in the form of unwelcome verbal or physical conduct that either (2) involved or (3) was based on her race or sex, nor has she shown (4) that the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. With regard to the assignment of duties, the statements in her performance appraisal, and Complainant's removal, we find that a prima facie case of hostile work environment is precluded based on our finding that she failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing that discrimination occurred, and we AFFIRM the FAD.

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 29, 2010

__________________

Date

1 In the FAD, S1's race is identified as African American. However, in her Affidavit, she identifies herself as American Indian. See ROI, Exhibit 7, p. 1.

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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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