0120100308
04-28-2010
Vernessa F. Peterson, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Vernessa F. Peterson,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120100308
Agency No. ATL80068SSA
DECISION
On October 28, 2009, complainant filed an appeal from the agency's
September 30, 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 appeal is deemed timely and is
accepted 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, GS-968-6 at the agency's Office of Disability
Adjudication and Review, in Birmingham, Alabama. On February 8, 2008,
complainant filed an EEO complaint alleging that she was discriminated
against on the basis of reprisal for prior protected EEO activity under
a statute that remains unspecified in the record when:
1. On or about September 3, 2007, complainant was not selected for the
GS-6/7/8, Legal Assistant position, advertised under vacancy announcement
number ODAR-61-2007;
2. On October 30, 2007, Complainant was issued an official reprimand; and
3. Complainant was subjected to harassment (non-sexual), when management
officials failed to address her concerns and allowed co-workers to talk
loudly, ostracize her, assigned her mailroom duties, spied on her and
sabotaged her work.
At the conclusion of the investigation, complainant was provided 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 but subsequently withdrew her request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that she
was subjected to discrimination as alleged. With regards to the
nonselection claim, the FAD noted that the selecting official (SO) said
that complainant did not demonstrate readiness to assume higher duties
and responsibilities and that complainant had had many conversations
with her about her current workload indicating that complainant felt
overwhelmed and had more work than she could complete. SO said that,
under the new position, complainant would keep her current duties and
would be responsible for additional, higher level duties. In addition, SO
identified a number of deficiencies in complainant's work. With regards
to the reprimand, SO and complainant's supervisor (RMO) both said that
complainant refused a direct order to perform mailroom duties and also
called a coworker "fat ass." With regards to the harassment, SO and
RMO said that they had not been made aware of the alleged incidents.
The agency found that complainant failed to establish that the agency's
articulated reason for its actions were a pretext for discrimination,
and failed to present sufficient evidence to show that the harassment
occurred. From this decision, complainant appeals. Complainant presents
no new 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 EEOC Management
Directive 110, 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").
Disparate Treatment
With regards to the claims of nonselection and receiving a reprimand, in
order to prevail in such claims of disparate treatment, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially 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 Construction
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 actions. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 17
(1983). Specifically, with regards to the nonselection claim, SO averred
that "I am [complainant's] second-line supervisor. As such, I am keenly
aware of her day-to-day performance. Based on my personal observations
and knowledge of the complainant's performance, she had not demonstrated
readiness to assume higher level duties and responsibilities." Report of
Investigation (ROI), Exhibit 6, p.4.
With regards to the reprimand, SO averred that:
Complainant was asked by [RMO] to perform Mailroom duties, as the other
case assistant who was primarily responsible for Mailroom duties that week
was in training. The Complainant refused to perform the Mailroom duties,
even after being given a directive by [RMO] to do the assigned work.
Several days prior to the Complainant's refusal to follow the directive to
perform assigned work, she was involved in a dispute with another employee
which led to the Complainant calling the other employee a derogatory name
(i.e., "fat ass"). The Complainant admitted to calling her co-worker
the derogatory name. Id., p. 5.
RMO corroborated SO's statements. See ROI, Exhibit 7, pp.4-6. The
agency having thus articulated legitimate, nondiscriminatory reasons for
its actions, the burden thus returns to the complainant to demonstrate,
by a preponderance of the evidence, that the agency's reasons were
pretextual, that is, they were not the true reasons or the actions
were influenced by legally impermissible criteria. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).
With regards to the nonselection, complainant averred that the selectees
worked in a different office and therefore, unlike complainant, they did
not have experience doing the type of work required for the position.
See ROI, Exhibit 9, p.2. In addition, complainant denied that SO had
any knowledge about her work performance. See id. With regards to
the reprimand, complainant admits that she refused to perform mailroom
duties but she averred that it was only for a week and that she had
never before refused to perform such duties. See id., p.3. In addition,
complainant denied calling a coworker a derogatory name. Id.
Following a review of the record, we find that complainant has not
established, by a preponderance of the evidence, that the agency's
articulated reasons for its actions are a pretext for reprisal.
With regards to the nonselection, we note initially that complainant's
contention that the selectees are "all mostly friends of [SO] whom
she works with, or referrals of friends of hers" ROI, Exhibit 5, p.4,
contradicts her contention that her nonselection was due to reprisal for
engaging in EEO activity. Complainant contends that, unlike herself,
all the selectees came from other offices within the agency and thus
did not have the same experience complainant had doing the type of
work required for the position. We note, however, that the vacancy
announcement for the position stated that the selected candidates would
receive two weeks training. See ROI, Exhibit 11a, p. 1. Furthermore the
announcement stated that the duties of the position were to provide legal
and technical support to administrative law judges, staff attorneys, and
paralegal specialists regarding the laws and regulations administered
by the agency. See id., p. 2. Despite complainant's contention, the
applications of the selectees show that they did possess knowledge of,
and had experience dealing with, the laws and regulations administered
by the agency. See generally ROI, Exhibits 11c and 11d, 1 through 5.
Notably, the Commission finds that complainant has not shown that her
qualifications were so demonstrably superior to those of the selectees
as to establish that the agency's reason for choosing the selectees
is a pretext for discrimination. See Wasser v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995).
With regards to the reprimand, we note that complainant's affidavit
denying that she called a coworker a derogatory name, see ROI, Exhibit
9, p.3, is contradicted by other affidavits where she admits making
the comment. See ROI, Exhibit 2, p.29 & Exhibit 5, p.37. Nor does
complainant deny that she refused to perform mailroom duties for at
least a week. See ROI, Exhibit 9, p.3. While complainant maintains
that other coworkers also used derogatory language or refused to perform
tasks but were not reprimanded as she was, she has not shown that such
coworkers both used derogatory language and refused to perform tasks
within a few days of each other as complainant did. We therefore find
that complainant has failed to establish that the agency's articulated
reason for its action is a pretext for reprisal.
Harassment
With regards to the claim of harassment, we note that 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 [and the Rehabilitation Act]
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 alleges that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (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.
Complainant provided a number of examples of the alleged harassment.
Complainant maintains that she has been ostracized by her coworkers and
some of them sabotage her work, refuse to stop talking loudly, and spy on
her, that two coworkers continuously make trips past her desk even though
it is out of their way, that coworkers want complainant to perform extra
duties, and that one coworker told complainant that she had a low IQ.
See ROI, Exhibit 2, p.17. In addition, complainant states that she
has been detailed into performing mailroom duties for over a year,
management refuses to promote her to a Legal Assistant position, and
she received a reprimand. See id.
With regards to the claims of harassment from her coworkers, specifically
being ostracized, having her work sabotaged, being spied on, being asked
to perform extra duties, and being told she has a low IQ, we note that
complainant has not shown that the alleged actions were either based
on or involved any prior EEO activity. Complainant has not claimed
that any of her coworkers who engaged in the alleged acts were named by
complainant in earlier EEO complaints, or were disciplined by management
because of statements made by complainant in other EEO complaints.
Indeed complainant maintains that the mistreatment from her coworkers
began "from the time I began working her in 1995." ROI, Exhibit 5,
p.20. Thus complainant has not shown any nexus between her coworkers'
alleged behavior towards her and any prior EEO activity by complainant.
Nor are the actions so severe or pervasive as to create a hostile work
environment.
Complainant has also alleged that the retaliatory harassment included
actions by management officials, not just coworkers. With regards to
being asked by SO to perform mailroom duties for over a year, we note that
complainant averred that she filed an EEO complaint against SO in 2003.
See ROI, Exhibit 5, p. 2. Complainant, further states, however, that
SO first assigned complainant to perform mailroom duties "in 05/06."
Id., p.24. The Commission notes that the U.S. Supreme Court has stated
that where a retaliation claim is based solely on the temporal proximity
between a protected activity and an adverse treatment, a complainant
must establish that the proximity is 'very close."' King v. Department
of the Air Force, EEOC Appeal No. 01A62609 (July 26, 2006) (citing Clark
County School District v. Breeden, 532 U.S. 268 (2001)). In King, the
Commission refused to find that a six-month time difference between the
prior protected activity and the adverse treatment satisfied the "very
close" standard annunciated by the Supreme Court. In the present case,
we find that a gap of over a year is not close enough for complainant
to establish a nexus between her 2003 EEO activity and SO's decision
to assign complainant to mailroom duties "in 05/06." ROI, Exhibit
5, p.24.
Furthermore we note that complainant averred that, with regard to
being assigned mailroom duties "it appears that [SO] has punished me
for refusing to take up the Contact Representative position," Exhibit
2, p.21, thus contradicting her allegation that SO's actions were in
retaliation for complainant's prior EEO activity. We therefore find that
complainant has not established a prima facie case of harassment based on
reprisal for these actions. Furthermore, with regards to the reprimand
and the nonselection, we note that a prima facie case of hostile work
environment is precluded based on our finding that complainant 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).
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find
that complainant has failed to establish that the agency's articulated
reasons for its actions are a pretext for discrimination, and has
failed to establish a prima facie case of harassment based on reprisal.
We therefore AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 28, 2010
__________________
Date
2
0120100308
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120100308