07a20052
09-16-2003
Tze-Shan Theresa Liu, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Tze-Shan Theresa Liu v. Social Security Administration
07A20052
09-16-03
.
Tze-Shan Theresa Liu,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 07A20052
Agency No. 97-0327-SSA
Hearing No. 308-98-8115x
DECISION
On December 31, 2001, the Social Security Administration (agency)
issued a final order and an appeal from the decision after hearing
of the Administrative Judge (AJ) in the above action concerning the
complaint of Tze-Shan Theresa Liu (complainant) claiming unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The appeal is timely
filed (see 29 C.F.R. � 1614.402(a)) and accepted in accordance with 29
C.F.R. � 1614.405. For the reasons that follow, the Commission affirms
the decision of the AJ.
In her formal complaint, complainant claimed discrimination based on her
sex and race/national origin (Asian/Chinese) when she was harassed by
a co-worker (E1) and subjected to a hostile work environment.<1> She
identified several incidents from November 1996 through January 1997,
during which she claimed that E1, among other things, treated her rudely,
acted in a threatening manner, and spread rumors about her and that
management did not take action against E1. Following a hearing, the AJ
found discrimination based on sex, in that, complainant was subjected
to a hostile work environment due to the actions and behavior of E1,
agency managers, and the agency's failure to redress the situation.
In its appeal brief, the agency addressed the incidents cited by
complainant as discrete, unconnected events, arguing that none of the
incidents were sufficiently severe to constitute harassment in violation
of Title VII. The agency also attempted to re-focus the events and point
to complainant as the cause of the problem.<2> With regard to E1, while
the agency acknowledged he was a difficult employee, it contended that it
was hampered in efforts to correct the situation by E1's legal rights,
administrative considerations, and the collective bargaining agreement
but that it acted in a reasonable and timely manner.<3> The agency
also objected to portions of the AJ's remedy as overly broad contrary
to EEOC regulations. Complainant did not submit comments in response
to the agency's appeal.
Pursuant to 29 C.F.R. � 1614.405(a), 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). 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). After an
independent review of the record and hearing testimony in its entirety,
including consideration of all statements submitted on appeal, it is the
decision of the Commission that the AJ accurately stated the facts and
correctly applied the pertinent principles of law and that his decision
is supported by substantial evidence in the record. We agree with the
AJ and find that the agency discriminated against complainant based on
sex when it subjected her to a gender-based hostile environment.
The agency has addressed complainant's claims as single, discrete event,
but in so doing, it fragments the impact of her several claims and
ignores complainant's claim of ongoing harassment. The Commission has
held that agencies may not ignore the totality of the circumstances
where complainants raise allegations of a hostile work environment.
See EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (March 8, 1994), at 4-6; Toole v. EEOC, EEOC Appeal
No. 01964702 (May 22, 1997). Here, the complainant sets out a chain of
events that constitute harassment and created a hostile work environment
based on sex.
CONCLUSION
Accordingly, the agency's determination that it did not discriminate
against complainant is REVERSED, and the AJ's decision that the agency
discriminated against complainant is AFFIRMED. The agency is directed
to comply with the Order, as modified, below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
A. The agency shall pay complainant all costs to which she may be
entitled, including copying and travel costs, according to the following
schedule. Within thirty (30) days of the date this decision becomes
final, the agency shall ask complainant for an accounting of her costs,
via a method of communication proving receipt. Complainant shall be
afforded thirty (30) days from receipt of the agency's inquiry to respond.
Within thirty (30) days from receipt of complainant's submission, the
agency shall pay complainant all costs to which she may be entitled
and, if any costs are denied, explain to complainant the reasons for
the denial. If complainant does not respond to the agency's inquiry or
does not otherwise cooperate within the time period stated, the agency
may deny her claim.
B. Within 30 days of the date this decision becomes final, the agency
shall pay complainant compensatory damages (nonpecuniary) in the amount
of $5,000.
C. The agency shall conduct training for all supervisory and managerial
employees employed at the Seattle Downtown District Office, including
acting/temporary supervisors, between November 1996 through January
1997, who remain employed by the agency, addressing these employees'
responsibilities with respect to eliminating discrimination in the
federal workplace and their responsibilities under the equal employment
opportunity laws. The training shall place special emphasis on prevention
and elimination of discrimination based on sex. The Commission does
not consider training to be a disciplinary action.
D. The agency shall consider appropriate disciplinary action against the
supervisory and managerial employees employed at the Seattle Downtown
District Office, including acting/temporary supervisors, between
November 1996 through January 1997, who remain employed by the agency,
identified in the AJ's decision or involved in the actions found to
be discriminatory herein. 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.
E. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented. Copies of all
submissions to the Commission shall be sent to complainant.
POSTING ORDER (G0900)
The agency is ordered to post at the Seattle Downtown District Office
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 (H0900)
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
___09-16-03_______________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AN AGENCY OF THE UNITED STATES GOVERNMENT
This Notice is posted pursuant to an Order by the
United States Equal Employment Opportunity Commission dated
which found that a violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privilege of
employment.
The agency's Seattle Downtown District Office supports and will comply
with such Federal law and will not take action against individuals because
they have exercised their rights under the law. The agency has remedied
the employee affected by the Commission's finding of discrimination by
affording compensatory damages to the complainant. The agency's Seattle
Downtown District Office will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all federal equal employment laws and will not
subject employees to discrimination based on sex.
The agency's Seattle Downtown District Office will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participated in proceedings pursuant to, Federal equal employment
opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614.
1Complainant and E1 worked at the Seattle Downtown District Office;
neither are currently employed by the agency.
2In its brief, the agency described complainant as "fixated" on E1,
as demonstrated by her diary of E1's actions toward her.
3The agency noted that transferring E1 "would have simply moved any
problems associated with [his] behavior elsewhere ... since all offices
are predominately (75%-80%) staffed with women." (Brief, p. 14).