01996835
10-24-2001
Evelyn J. Seabrook, Complainant, v. Larry G. Massanari, Acting Commissioner, Social Security Administration, Agency.
Evelyn J. Seabrook v. Social Security Administration
01996835
October 24, 2001
.
Evelyn J. Seabrook,
Complainant,
v.
Larry G. Massanari,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01996835
Agency No. SSA-026-97
DECISION
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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that she was discriminated against on the bases of race (Black)
and age (DOB: 11/9/44) when:
(1) on August 27, 1996, she did not receive an award;
on August 21, 1996, she was not selected for the GS-105-11 Social
Insurance Specialist, Claims Representative position in the Ocala,
Florida Branch Office, advertised under Vacancy Announcement
No. 96-146SFL;
on August 19, 1996, she was not selected for the GS-105-11 Social
Insurance Specialist, Claims Representative position in the Fort
Pierce, Florida District Office, advertised under Vacancy Announcement
No. 96-133NFL;
management from the Orlando District Office purposely maligned her when
others called for a selection recommendation; and,
she was forced to work in a hostile, racist environment, as evidence
by inappropriate comments, as well as management's attempts to thwart
the growth of the Black Affairs Advisory Council in the Orlando area,
and to polarize Blacks by setting them against one another.
For the following reasons, the Commission AFFIRMS the final agency
decision finding no discrimination.
The record reveals that during the relevant time, complainant was
employed as a Service Representative GS-8, in the Teleservice Unit at the
agency's Orlando, Florida District Office. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on October 9, 1996. At the conclusion of the
investigation, complainant was informed of her right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a final
decision by the agency. Complainant requested that the agency issue a
final decision.
In its FAD, the agency concluded, inter alia, that complainant failed to
show that any of her co-workers that failed to meet the stated criteria
and who were not within her protected class, received an award. The
agency also concluded that complainant failed to establish a prima facie
case of age discrimination. The agency further found that complainant
failed to show that she was subjected to a hostile work environment.
Complainant makes no new contentions on appeal. The agency requests
that we affirm its FAD.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Complainant may establish a prima facie case of race and age
discrimination by showing: (1) she is a member of a protected class, and
(2) she was accorded less favorable treatment from that given to persons
otherwise similarly situated. Williams v. Department of Education,
EEOC Request No. 05970561 (August 6, 1998). Complainant may also set
forth evidence of acts from which, if otherwise unexplained, an inference
of discrimination can be drawn. Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978).
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.
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 ADEA]
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).
Award Claim
We find that complainant established a prima facie case of race
discrimination in regard to her claim that she did not receive an award.
In particular, complainant, the only Black in her organizational unit,
was the only employee not to receive some type of award. Because we find
that complainant established a prima facie case of race discrimination,
the burden now shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions.
The record shows that each award had certain criteria, including:
consistency of work, technical job skills, helping skills and special
duties. The record also reflects that there was a review panel that
consisted of four supervisors and four employee representatives that
decided whether to approve the award nominations. The members of the
panel testified that complainant's award nomination did not address the
awards' criteria. In contrast, those who received awards had satisfied
all of the criteria.
Under these circumstances, we find that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Complainant has
not presented sufficient evidence to show that the agency's proffered
reasons are a pretext for discriminatory animus.
Non-Selection Claims
We find that complainant did not establish a prima facie case of age
discrimination. In particular, the persons selected were older than
forty at the time of selection and, thus, within the same protected class
as complainant. We do find however, that complainant has established a
prima facie case of race discrimination because the record reveals that
she applied and was not selected for the position of Social Insurance
Specialist (Claims Representative), GS-105-11; that she was qualified for
the position; and that one of the persons who was selected (the selectee)
(White) was a nonmember of her protected group. See Cuddy v. Carmen,
762 F.2d 119, 122 (D.C. Cir.), cert. denied, 474 U.S. 1034 (1985).
We find that the agency has articulated a legitimate, nondiscriminatory
reason for selecting the selectee over appellant. See Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The record
reflects that the selectee was the strongest candidate for the
position. In point of fact, the selectee was well-versed in the
agency's programs and had previously worked in a temporary capacity
as a claims representative. It is well established that where there
are two or more equally desirable candidates competing for the same
position, the selecting official may exercise his or her prerogative in
choosing between the candidates, and, absent discrimination, a trier of
fact should not substitute his judgment for the legitimate exercise of
managerial discretion. Bennett v. United States Postal Service, EEOC
Appeal No. 01893757 (April 20, 1990).
In order to establish that the agency's articulated reason is pretextual,
complainant must either show that a discriminatory reason more likely
motivated the agency or that the agency's proffered explanation is
unworthy of credence. Burdine, 450 U.S. at 253. In a non-selection case,
pretext may be demonstrated in a number of ways, including a showing that
an appellant's qualifications are observably superior to those of the
selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Having
considered the evidence of record, we find that complainant has not
established pretext. Specifically, we note that complainant has not
demonstrated that her qualifications for the position were "observably
superior" to those of the selectee. Furthermore, complainant has not
demonstrated that the selecting officials' decision was discriminatorily
motivated or that their articulated reason is unworthy of credence.
Accordingly, we find that complainant has not established discrimination
based on race or age.
Poor Recommendation Claim
Complainant contends that a poor recommendation given by her supervisor
(S1) for a position she had applied for was based on her race and age.
Even assuming that complainant established a prima facie case of race
or age discrimination in regard to the recommendation, we find that she
failed to establish that the recommendation was due to discrimination
based on complainant's race or age. While the record establishes that S1
did not give complainant a good recommendation, we find that complainant
failed to establish that his reasons for the recommendation were unworthy
of credence or were otherwise pretextual.
Hostile Work Environment Claim
The Commission has thoroughly examined complainant's contentions but
finds no persuasive evidence that complainant was subjected to a hostile
work environment. Specifically, complainant provides twenty-five (25)
incidents that she alleges show that she was subjected to a hostile
work environment. The record reflects that these incidents occurred
as early as 1990 and are workplace scenarios that are neither severe
or pervasive. Moreover, we find that complainant's contention that �a
non-Black employee would not have been treated in this manner� without any
additional evidence is insufficient to establish that she was subjected
to unlawful harassment.
Under these circumstances, we find that complainant has not established
that the agency subjected her to disparate treatment or harassment due
to a discriminatory animus based on her race or age. 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, we AFFIRM the FAD.
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
October 24, 2001
__________________
Date