0720120009
09-24-2013
Tera B., Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Tera B.,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0720120009
Hearing No. 510-2010-00092X
Agency No. NY090164SSA
DECISION
Following its December 16, 2011 final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of 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 Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency's final order, and AFFIRMS the AJ's finding of discrimination and relief ordered.
ISSUE PRESENTED
The issue on appeal is whether there is substantial evidence in the record to support the AJ's finding that the Agency subjected Complainant to a hostile work environment in violation of Title VII because of her race and sex, and took a tangible employment action against her by lowering her 2008 performance appraisal making her ineligible for consideration for the "Recognition of Contribution Award" or the "Quality Step Increase Award."
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Teleservice Representative at the Agency's Teleservice Center facility in Saddle Brook, New Jersey. Complainant has worked at the Saddle Brook facility since February 5, 1997. During the relevant time periods, the workforce was composed of 32 employees: 7 White males; 9 White females; 2 Black males; 5 Black females; 2 Hispanic males; 5 Hispanic females; 1 female "Islander;" and 1 Native American male.
The record reflects that Complainant was directly supervised by the Teleservice Center Supervisor (S1) for ten years. Complainant testified that S1 would continually speak to her and other African American female employees in a way that mocked and stereotyped African Americans, describing them as violent, mean, and rude. Complainant noted that these comments were made almost daily. Complainant alleged that S1 made fun of being "scared" of "us" [black women], and would ask why they were more violent than other employees. Complainant testified that S1 would impersonate the character "Buckwheat", and mockingly ask her and other African American females "how use a do today?" Complainant states that she always objected to S1's behavior, and would frequently ask him, "Why are you speaking to me that way? I am very educated." Complainant states that S1 would try to make light of the comments, but that she and the other African American women in the office found them offensive.
Complainant believes that S1 began referring to her as threatening and violent following an incident that occurred in 2003. Complainant alleges that an employee in the break room referred to another employee as a "mutt" while speaking to her, S1, and two other employees. Complainant advised the employee who made the comment that she found it offensive. During the conversation Complainant alleges that S1 remarked that the comment was not offensive and had nothing to do with race. Complainant alleges that she excused herself from the conversation because she found it offensive, and that she advised the employee who made the comment that they "should be careful about what [they said] to other people." Complainant complained to her second level supervisor (S2). Shortly after she complained, Complainant was suspended for "threatening the employee who made the mutt comment."
S1 did not testify at the hearing. In his affidavit, he estimated that he evaluated Complainant approximately eight or nine times over the course of the ten year period, and the record reflects that Complainant received financial awards known as "Recognition of Contribution" in June 2004, April 2005, April 2006, December 2006 and April 2008. In 2007, Complainant first took issue with S1's assessment of her annual performance. In his discussion of Complainant's "Interpersonal Skills" S1 indicated that although Complainant treated customers and fellow co-workers with respect, she had "demonstrated difficulties in accepting constructive feedback" and did not exercise the same level of courtesy in her interactions with management. In April 2008, approximately six months after the 2007 appraisal, S2 gave Complainant a "Recognition of Contribution Performance Award" in the amount of $878.00 for consistently handling calls with politeness and professionalism.
In Complainant's 2008 performance appraisal, S1 evaluated Complainant in the same four categories as her 2007 appraisal, and she received an overall score of 3.5. Based on her score, Complainant was ineligible for consideration for the "Recognition of Contribution Award" or the "Quality Step Increase Award." S1 stated that he saw no improvement in the manner in which Complainant received constructive feedback, and that he has "repeatedly informed Complainant throughout the year to defuse contentious situations before they escalate." He also stated "that she has not taken the appropriate steps to ensure office cooperation;" and that Complainant did not maintain a "consistently positive attitude," often reacting "negatively and uncooperatively" when in disagreement. Complainant alleges that S1 never approached her with suggestions for improving her interpersonal skills and maintains that there is a lack of documentation to support his contention that she was approached about these matters throughout the year. While S1 did not testify, in his affidavit he states that he has written documentation of his conversations with Complainant. These notes were not made part of the record in the instant matter.
On February 23, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of Issues Presented above. 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 timely requested a hearing and the AJ held an initial hearing on January 6, 2011, and issued a preliminary decision on May 4, 2011. A second hearing was held on June 1, 2011, and on November 3, 2011 the AJ issued a decision finding that the Agency had subjected Complainant to a hostile work environment and discriminated against her on the basis of her race and gender. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged.
AJ's Decision
The AJ found that an assessment of the live un-rebutted testimony from Complainant and two other witnesses, establishes that S1 continually mocked and stereotyped African American females, and at least on one occasion, accepted racially demeaning remarks. These comments, the AJ found, spanned many years, and significantly interfered with Complainant's ability to perform her job. The AJ found that not only was Complainant subject to a hostile work environment, and that she also suffered a tangible employment action, when she received a received a lower rating on her 2008 performance appraisal than in 2007, leaving her ineligible for a higher financial award based on her performance.
CONTENTIONS ON APPEAL
On appeal, the Agency requests that the Commission affirm its rejection of the AJ's decision finding that Complainant was subjected to discrimination and a hostile work environment on the basis of race and sex. Specifically, the Agency says that the AJ's decision is the result of factual and legal errors, and is not based on substantial evidence of record.
The Agency argues that the AJ's decision is improper because: (1) the AJ created and applied an incorrect legal standard when adjudicating this case; (2) the AJ abused his discretion in denying the Agency's request to present testimony from an expert in the employee rating system; (3) the AJ prevented the Agency from presenting its case, and denied the Agency a full and fair investigation of the claims; (4) the AJ abused his discretion in assessing a witness' credibility; (5) the AJ erroneously determined that the Agency lacked an anti-harassment policy, and unreasonably prevented the Agency from presenting evidence to establish that it distributed anti-discrimination information and presented training to its workforce.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ 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). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
After a careful review of the record, including evidence not specifically discussed in this decision, we discern no basis to disturb the AJ's finding of discrimination. The findings of fact are supported by substantial evidence, and the AJ correctly applied the appropriate regulations, policies, and laws.
With respect to the Agency's contentions on appeal, we first note that AJ's have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. � 109. Upon review of the record, the Commission finds no evidence that the AJ abused his discretion in these matters.
We next note the Agency's contention that the AJ applied the wrong legal standard to this matter and therefore reached the incorrect result. The Agency maintained that:
The Commission 'identifies two types of harassment that could result in liability: harassment that results in a tangible employment action (firing, transfer, demotion) and harassment that causes a hostile work environment.' (citations omitted). In this case, the AJ conflated the two types of harassment claims and therefore applied the wrong legal standard. Because this case involved an allegation of discrimination due to Complainant's race and gender, without any allegations that the discriminatory conduct was sexual in nature, the AJ could only consider whether the conduct which Complainant alleged was 'sufficiently severe and pervasive to alter the conditions' of Complainant's employment and create an abusive working environment.
We find that the Agency's argument represents a misunderstanding of the law, our guidance and precedent. To establish a claim of hostile work environment harassment, Complainant must show that (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct: because of her protected class; (3) the harassment complained of was based on her 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, and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (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., at 6 (March 8, 1994).
With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action the Agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). (Enforcement Guidance).
Contrary to the Agency's contentions, the issue of whether there was a tangible employment action is applicable regardless of whether the claim at issue involves sexual harassment. In fact, our Enforcement Guidance expressly states that "the Commission has always taken the position that the same basic standards apply to all types of prohibited harassment. Thus, the standard of liability set forth in [Ellerth and Faragher] applies to all forms of unlawful harassment." Moreover, the Enforcement Guidance provides that "the rule in Ellerth and Faragher regarding vicarious liability applies to harassment by supervisors based on race, color, sex (whether or not of a sexual nature), religion, national origin, protected activity, age, or disability."
We find substantial evidence in the record supports the AJ's finding that Complainant established all five (5) elements of a harassment claim analysis, and that, because the harassment Complainant was subjected to by her supervisor resulted in a tangible employment action, no affirmative defense is available for the Agency.1 Burlington Industries at 762-63; Faraeher at 808. Thus, the Agency's arguments regarding the AJ's determination that it lacked an anti-harassment policy, and that the AJ unreasonably prevented it from presenting evidence establishing that it distributed anti-discrimination information and presented training to its workforce is not relevant here. There is no affirmative defense available to the Agency because a tangible employment action resulted. The Agency is vicariously liable for the actions of S1.
Finally, with respect to the Agency's argument that the AJ abused his discretion in assessing a witness' credibility, as noted above, an AJ's credibility determinations based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. Here, we find no persuasive evidence that the AJ abused his discretion. We also find no reason that the AJ's credibility determinations should not be accepted.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order, AFFIRM the AJ's finding of discrimination with a modified remedy, and REMAND the matter back to the Agency to take corrective action with this decision and the order herein.
ORDER
Within one-hundred and twenty (120) calendar days of the date this decision becomes final, the Agency, to the extent that it has not done so already, is ORDERED to take the following actions:
1. Pay Complainant $1500.00 in compensatory damages.
2. Raise Complainant's lowered 2008 appraisal from 3.5 to 4.0. In addition, the Agency will determine if the amended score would entitle Complainant to any awards, cash or otherwise, and issue them to Complainant. If Complainant is entitled to any cash awards, the money will be paid with interest.
3. The Agency shall provide eight (8) hours of EEO training to S1 regarding his responsibilities under EEO laws, particularly the Rehabilitation Act;
4. The Agency shall consider taking appropriate disciplinary action against S1. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If S1 has left the Agency's employ, the Agency shall furnish documentation of his departure dates.
POSTING ORDER (G0900)
The Agency is ordered to post at its Saddle Brook, New Jersey Teleservice Center copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
__9/24/13________________
Date
1 Contrary to the Agency's assertion that the AJ did not address element 4 of the harassment claim analysis, we note his determination that S1's "comments were not merely isolated utterances but spanned many years and significantly interfered with Complainant's ability to perform [her] job."
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0720120009
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720120009