01a53482
08-05-2005
Adelina Perez, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Adelina Perez v. Social Security Administration
01A53482
August 5, 2005
.
Adelina Perez,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A53482
Agency No. 030051SSA
Hearing No. 360200400031X
DECISION
INTRODUCTION
Adelina Perez (�complainant�) timely initiated an appeal from a final
agency decision (FAD) concerning her complaint of unlawful 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
accepted pursuant to 29 C.F.R. � 1614.405. Upon review, the Commission
finds that the agency properly determined complainant was not subjected
to unlawful employment discrimination.
ISSUE PRESENTED
Whether complainant was discriminated against on the basis of sex (female)
when the Hearing Office Chief Administrative Law Judge (�HOCALJ�) made
inappropriate remarks and innuendoes of a sexual nature to coworkers in
complainant's presence.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Senior Case Technician at the agency's Office of Hearing and Appeals
located at the San Antonio, Texas facility. Complainant sought EEO
counseling and subsequently filed a formal complaint on November 15,
2003, alleging that she was discriminated against on the basis of sex
(female) when:
1. On August 29, 2002, she witnessed the HOCALJ turn to a male coworker
and state, �Hey Bob, let's say we have a wet t-shirt contest,� in
reference to a female coworker returning in from the rain.
She continually witnessed the HOCALJ making inappropriate sexual remarks
and sexual innuendoes.
The complaint was accepted for investigation on December 11, 2002.
According to complainant's version of events regarding her first claim
as found in the report of investigation, a female Senior Case Technician
left her desk to close her car windows upon finding that it was raining
heavily outside, and returned five minutes later with wet clothes.
The HOCALJ approached the Senior Case Technicians' work area, which at
the time was occupied by complainant, a male coworker, and the female
coworker who had returned inside. The HOCALJ proceeded to comment on the
bad weather, and just before he walked away, stated to the male coworker,
�Hey Bob, let's say we have a wet t-shirt contest,� within earshot of
both complainant and her female coworker.
In sworn affidavits, both the male and female coworker state that they
did not hear, and have never heard, the HOCALJ make sexual comments.
The female coworker recalls going outside to close her car windows as
well as having a brief conversation about the weather, but denies hearing
any comment regarding a wet t-shirt contest. In an unsworn declaration,
the HOCALJ states that he is �unable to state what conversation [he]
had with anyone on August 29, 2002,� and that �[n]o person has ever
alleged that [he] made any comments or innuendoes� besides complainant.
In regard to complainant's second claim of ongoing sexual harassment,
complainant states that the wet t-shirt contest comment �was not the
first time [the HOCALJ] has made inappropriate sexual innuendoes.�
Although complainant fails to cite specific dates or incidents, she
claims that the exchanges between the HOCALJ and the aforementioned
female coworker had progressed to the point where she had to rearrange
her work area so as to face away from the female coworker's module.
Complainant contends that the comment was �the straw that broke the
camel's back.� Only at this time did complainant notify a supervisor
and a second female coworker of the alleged sexual harassment and reasons
for her rearranged work space.
In her affidavit, the supervisor confirms that complainant made such a
report, but states that she had been previously unaware of complainant's
situation. The second female coworker also confirms that complainant
confided in her following the alleged comment. The second female coworker
recalls that, although she has never heard the HOCALJ make overtly sexual
comments, she has witnessed him showing preferential treatment and being
�overly enthusiastic in his concern� towards the female coworker.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
(�AJ�) or alternatively, to receive a final decision by the agency.
Complainant elected to exercise her right to a hearing. Pursuant to the
AJ's Acknowledgment Order, on December 24, 2003, the agency addressed
a First Set of Interrogatories, Request for Production of Documents and
Request for Admissions to complainant via her representative. The record
lacks any documentation that complainant's response was provided within
the ordered thirty (30) day time frame, and by letter of February 5,
2004 to complainant's representative, the agency agreed to extend the
discovery request deadline to February 23, 2004. Again, the record
contains no evidence that complainant's responses were timely submitted by
the amended deadline. On February 23, 2004, the AJ granted the agency's
Motion to Compel, and complainant's representative was ordered to produce
the requested discovery responses by March 9, 2004. After once again
averring that they had not received complainant's responses by the ordered
deadline, the agency filed a Motion for Sanctions and Motion to Dismiss.
In response, the AJ issued an Order to Show Cause as to why the order had
not been complied with. On April 1, 2004, complainant's representative
responded to the Order by submitting the requested discovery responses
with a certificate of service indicating that they had been sent to the
agency via facsimile transmission on March 9, 2004. On April 5, 2004
and again on April 12, 2004, the AJ ordered complainant's representative
to offer proof in the form of a transmission record that he had in
fact timely submitted complainant's responses pursuant to her order.
In response, complainant's representative submitted a notarized sworn
statement that he had successfully transmitted the responses to the agency
but claimed he was unable to produce or retrieve a transmission report.
Accordingly, the AJ responded to the agency's Motion for Sanctions and
Motion to Dismiss by dismissing complainant's request for a hearing and
ordering the agency to issue a FAD pursuant to her authority under 29
C.F.R. � 1614.109(f).
In its FAD, the agency concluded that complainant was not subjected to
unlawful employment discrimination. Specifically, the agency found that
complainant had failed to establish a prima facie case because she had
failed to prove by a preponderance of the evidence that the alleged
incident(s) had actually occurred. Moreover, the agency determined
that even if the comment in question had been made, it did not rise to
the level of harassment necessary to establish a prima facie case of
employment discrimination.
On appeal, complainant contends that the San Antonio office in question
�has had endemic sexual harassment and discrimination documented by
numerous EEO complaints in the last five years,� citing to other unnamed
claims brought against the agency that have been recently remanded
by the Commission or settled. Additionally, complainant argues that
the AJ improperly dismissed her request for a hearing after having
�arbitrarily and capriciously demanded a fax receipt [that did not exist]
to support the sworn statement.� Complainant notes that the record
contains sufficient proof that the agency received the interrogatories.
The agency has elected not to submit a response brief.
ANALYSIS AND FINDINGS
A. Discrimination Claim
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 first
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 agency may overcome complainant's prima facie
case by articulating a legitimate and nondiscriminatory reasons for its
conduct. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must then 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, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In order to specifically establish a prima facie case of sexual
harassment, complainant must prove, by a preponderance of the evidence,
the existence of five elements: (1) that she is a member of a statutorily
protected group; (2) that she was subjected to unwelcome sexual advances,
requests for sexual favors, or other verbal or physical conduct of
a sexual nature; (3) that the harassment of which she complained is
based on sex; (4) that the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with her work environment and/or creating an intimidating, hostile, or
offensive work environment; and (5) that there is a basis for imputing
liability to the employer. Henson v. City of Dundee, 682 F.2d 897,
903-05 (11th Cir. 1982).
In the instant case, the Commission finds that the FAD properly
determined complainant has failed to establish that she was in fact
subjected to sexual remarks and innuendoes made by the HOCALJ such that
she has sufficiently satisfied the second prong of the Henson test.
See id. at 903. All three witnesses complainant lists as present on
August 29, 2002 either affirmatively deny that the HOCALJ made the wet
t-shirt contest comment or claim they do not recall such a statement
being made. In regard to complainant's second claim referencing
the HOCALJ's long-standing practice of making such comments, we note
that complainant only refers to a generalized �undertone of sexual
harassment� and avers that dates or examples are �not readily available�
or �[cannot] be replicated.� Moreover, the record reveals that every
named witness plainly denies complainant's allegations of an ongoing
hostile work environment. By citing to the San Antonio facility's general
history of EEO complaints on appeal, complainant does not provide the
Commission with any further evidence regarding her specific claim.<0>
In sum, complainant has failed to provide any corroborative evidence
supporting her claim regarding sexual remarks made by the HOCALJ.
As such, the Commission is unable to establish based on a preponderance
of the evidence that sexual remarks were conclusively made on August 29,
2002 or any other period in question.
As for the alleged conduct between the HOCALJ and the female coworker that
was corroborated by a second coworker,<0> we find that complainant has
failed to establish that a term or condition of her employment has been
affected such that she has satisfied the fourth prong of the Hansen test.
See id. at 904. Whether the harassment is sufficiently severe to trigger
a violation of Title VII must be determined by looking at all of 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, Inc.,
510 U.S. 17, 23 (1993). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
situation. Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC
Notice No. 915.002 (March 8, 1994). In the instant case, the HOCALJ's
flirtations with and �enthusiastic concern� for a female coworker, while
obviously personally upsetting to complainant, were insufficiently severe
to warrant a finding of discrimination under Harris, 510 U.S. at 23.
Complainant's similarly situated female coworker did not interpret the
behavior as sexually offensive, and the record gives no indication that
the HOCALJ's �enthusiastic concern� over the female coworker in question
had a tangible effect, either material or psychological, on the work
environment or performances of other similarly situated employees.
See, e.g., Hauser v. Department of Defense, EEOC Appeal No. 01960361
(July 10, 1998) (finding that the complainant's third-party exposure to
�flirtatious� and �somewhat sophomoric� innuendoes and jokes between a
manager and coworker was insufficiently severe so as to affect a term
or condition of her employment).
B. AJ's Finding of Fact and Issuance of Sanctions
Finally, we address complainant's contention on appeal that the
AJ improperly dismissed her request for a hearing. Pursuant to 29
C.F.R. � 1614.109(f)(3), when a complainant fails without good cause to
respond fully and in a timely fashion to an AJ's order or request for
documents, the AJ has the authority to issue any number of sanctions
against complainant, including, but not limited to, excluding evidence
offered by a party failing to produce the requested information,
issuing decisions fully or partially in favor of the opposing party,
and/or taking all other actions as appropriate. Additionally, we note
that an AJ has broad discretion in the conduct of a hearing, including
such matters as discovery orders and the drawing of adverse orders and
sanctions. 29 C.F.R. � 1614.109(e); Hogan v. Department of Health and
Human Services, EEOC Appeal No. 01A24912 (November 17, 2003). Under this
deferential standard of review, we conclude that the AJ's finding that
complainant's representative failed without good cause to respond in a
timely fashion to her Order to Compel and subsequent sanction against
complainant were proper.
We first note that the AJ's determination that the certificate of service
and notarized statement were insufficient proof of a timely response
to the agency's interrogatories by March 9, 2004 was a satisfactory
factual finding. Under Commission regulations, an AJ's factual
findings are to be addressed on appeal using a �substantial evidence�
standard of review. 29 C.F.R. � 1614.405(a). 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).
On appeal, complainant contends that the FAD, which cites to complainant's
responses to the agency's interrogatories, is �documented proof� that the
agency received the requested discovery. However, complainant was not
sanctioned based on her representative's failure to submit the requested
discovery, but rather based on his failure to provide sufficient proof
that the discovery was timely submitted. Complainant admits on appeal
that there is no documented proof of her representative's alleged
facsimile transmission on March 9, 2004. Given that the agency was
able to consistently offer proof of service in the form of facsimile
transmission reports, we find that a person of �reasonable mind� might
easily determine based on the record, as the AJ did in the instant case,
that complainant's representative �. . . must produce proof of mailing or
faxing; he must produce more than a notarized statement and a certificate
of service to prove that he sent the documents in a timely manner.�
Moreover, we find that the AJ's dismissal of complainant's hearing
request based on her conclusion that complainant failed to comply with
her original Order to Compel was not an abuse of her discretion to
issue sanctions pursuant to 29 C.F.R. � 1614.109(f)(3). As previously
stated, Commission regulations give AJs a great deal of discretionary
authority to issue adverse sanctions when a complaint fails to comply
with orders without good cause. 29 C.F.R. � 1614.109(e), (f)(3); EEO
Management Directive 110, Ch. 7 � III.D.10 (1999); Hogan v. Department of
Health and Human Services, EEOC Appeal No. 01A24912 (November 17, 2003).
This Commission has long held that sanctions must be tailored in each case
to appropriately address the specific behavior of the offending party.
See Po v. United States Postal Service, EEOC Appeal No, 01A10836
(June 14, 2001). Accordingly, an abuse of judicial discretion in
issuing sanctions occurs when an AJ imposes a harsher sanction than is
necessary for deterring a party's behavior or for providing an equitable
remedy to the opposing party. Clark v. United States Postal Service,
EEOC Appeal No. 01945228 (February 22, 1996). However, in the instant
case, we find that the AJ imposed a proper sanction given the gravity
of her finding that complainant's representative delayed the discovery
process for almost three months. Complainant remained entitled to a
decision on the merits by the agency based on the affidavits of all her
named witnesses contained within the report of investigation as well
as the interrogatories in question; complainant was only precluded from
pursuing a hearing process in which the opposing party would have been
substantially disadvantaged by her failure to timely respond to discovery
requests. We also note that this sanction was substantially less severe
than the full dismissal or adverse decision without a hearing that were
requested in the agency's Motion for Sanctions and Motion to Dismiss.
Cf. Heckstall v. United States Postal Service, EEOC Appeal No. 01A20172
(January 25, 2002) (finding that the proper sanction against a complainant
who failed to submit further evidence of good cause of failure to comply
with an AJ's order beyond her own assertions was denial of the hearing
request and remand to the agency for issuance of a FAD).
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and
evidence not specifically addressed in this decision, the FAD is hereby
AFFIRMED.
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
August 5, 2005
__________________
Date
0 1We also note that the Commission as a
general rule will not consider new evidence on appeal unless there is
an affirmative showing that the evidence was not reasonably available
prior to the investigation or during the hearing process. EEO Management
Directive 110, Ch. 9 � VI.A.3 (1999). Complainant makes no such showing
of prior unavailability.
0 2The Commission assumes arguendo that this corroborative evidence
is sufficient to establish by a preponderance of the evidence that the
alleged behavior was in fact occurring and based on sex so as to satisfy
the second and third prongs of Hensen, 682 F.2d at 903-04.