01985060
04-21-2000
Francine Jefferson, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Francine Jefferson v. Social Security Administration
01984993
April 21, 2000
Francine Jefferson, )
Complainant, )
)
v. ) Appeal No. 01984993
) No. 01985060
Kenneth S. Apfel, ) Agency No. 97-0300-SSA
Commissioner, ) No. 97-0392-SSA
Social Security Administration, ) No. 97-0412-SSA
Agency. )
)
DECISION
On May 28 and May 15, 1998, Francine Jefferson (hereinafter referred
to as complainant) filed appeals from the May 27 and April 9, 1998,
final decisions, respectively, of the Social Security Administration
(hereinafter referred to as the agency) concerning her complaints of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621
et seq. The record does not indicate when complainant received the
agency decisions. Accordingly, the appeals are timely filed (see 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.402(a)))<1> and are accepted in accordance with
64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).
For the reasons that follow, the agency's decisions are AFFIRMED.
The issue presented in these appeals is whether the complainant has
proven, by a preponderance of the evidence, that the agency discriminated
against her on the bases of race (black), age (51), and reprisal with
regard to events from December 1996 through April 1997.
Complainant filed her formal complaints on March 9, 1997 (97-0300-SSA)
(C1), May 7, 1997 (97-0392-SSA) (C2), and May 22, 1997 (97-0412-SSA)
(C3); C2 and C3 were consolidated by the agency for investigation and
decision. Following an investigation of her complaints, she was advised
of her right to request a hearing before an EEOC Administrative Judge
or immediate final agency decisions (FAD). Complainant requested FADs,
and the agency found no discrimination on all claims. Complainant has
filed the instant appeal.
Complainant worked as the District Manager, GS-14, Area 3 (Region V),
Pontiac, Michigan. In C1, she complained that the Area Director (M1)
and other agency management discriminated against her when (a) an agency
reorganization in December 1996 reduced her service area and supervisory
responsibilities; (b) her immediate supervisor (S1) added comments to
her evaluation of an employee (E1); and (c) her request for a hardship
transfer to another facility was denied and given to an assistant
district manager (white, age 48) (E2). In C2, she complained when
(d) the systems manager (SM) allegedly surveyed her office to insure
that all terminals were in use; and (e) M1 assigned a subordinate
supervisor (E3) to a special committee. In C3, she complained that M1
and other managers criticized her when (f) she made telephone calls and
(g) used agency stationery in connection with a black support group.
Complainant contended that these actions were taken to effectively
demote her, undermine her authority and responsibilities, or criticize
her performance.
In response to C1, the agency stated that the reorganization was
justified by sound business practices, other managers experienced
reduced workloads, and complainant was not adversely impacted; that M1
exercised his managerial prerogative to add comments to E1's evaluation,
expressing legitimate reservations about E1's performance; and that E2 was
transferred in an effort to eliminate excess managerial levels, it was
a lateral action, and he was only three years younger than complainant.
With regard to C2, the agency stated that the SM checked all office
locations for unused terminals in order to redistribute them and that
M1 exercised managerial discretion and acted properly to assign E3 to
a special project. As to C3, the agency asserted that complainant
improperly used agency stationery, solicited membership, and called
lower-level supervisory staff in connection with a support group for
new black managers.<2> Finally, the agency contended that the matters
complained of were normal and legitimate managerial actions, and it
generally asserted its right to manage the agency and exercise authority
over its personnel and operations.
In her statement in support of her appeals, complainant contests some
factual assertions in the agency's FAD with regard to the restructuring
and downsizing. She argues that she was more qualified than E2, that
no minorities had been placed in the new office initially, and that her
authority was reduced. She also justifies her actions with regard to
use of agency stationery and the telephone calls, and she criticizes the
scope of the investigation with regard to these matters. Complainant also
refers to additional complaints and issues not before us at this time.
Complainant has alleged that she was subjected to harassment and
disparate treatment based on age and race. The harassment of an employee
based on his/her race, color, sex, national origin, age, disability
or religion is unlawful, if it is sufficiently patterned or pervasive.
McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). To prevail
on her harassment claims complainant must show that she was subjected to
a hostile work environment because of discriminatory factors, i.e., age
or race. In assessing allegations of harassment, the Commission examines
factors such as the frequency of the alleged discriminatory conduct, its
severity, whether it is physically threatening or humiliating and if it
unreasonably interferes with an employee's work performance. Harris v.
Forklift Systems, Inc., 510 U.S 17 (1993). Usually, unless the conduct
is severe, a single incident or group of isolated incidents will not
be regarded as discriminatory harassment. Walker v. Ford Motor Co.,
684 F.2d 1355, 1358 (11th Cir. 1982). See Bloomer v. Department of
Transportation, EEOC Petition No. 03980137 (October 8, 1999).
With regard to complainant's claims of harassment, based on the record
before us, we find that the weight of evidence shows that the events
and incidents alleged by complainant were not based on discriminatory
factors and were not sufficiently severe or pervasive as to affect her
work environment. Complainant has not shown that the actions taken by
agency managers were not based on legitimate concerns about the needs of
the agency or that the events were race-based or age-based hostile animus.
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Loeb v. Textron, Inc., 600 F.2d 1003
(1st Cir. 1979). Initially, for complainant to prevail, s/he must
first 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;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Following this
established order of analysis is not always necessary where the agency
articulates an explanation for its actions. In such cases, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas
analysis--the ultimate question of whether complainant has shown by a
preponderance of the evidence that the agency's action was motivated
by discrimination. United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-14 (1983). It is complainant's burden to
demonstrate by a preponderance of the evidence that the agency's action
was based on prohibited considerations of discrimination, that is, its
articulated reason for its action was not its true reason but a sham
or pretext for discrimination. 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). Under the ADEA, the complainant must show that
her age was a determining factor in the agency's removal action, that
is, considerations of age made a difference in the agency's action.
Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993) (age had "a
role in the process and a determinative influence on the outcome").
We find that the agency articulated legitimate, nondiscriminatory reasons
for its actions. The agency's explanations show that it took legitimate
actions to manage the agency based on proper considerations of personnel
needs. Complainant has not demonstrated that these reasons were not the
true reasons or based on prohibited factors. Complainant's criticisms of
others and her disagreement with the decisions of her managers has not
undermined the agency's explanations nor does it demonstrate that the
agency's reasons were based on discriminatory considerations. We find
therefore that complainant has not shown that the agency's reasons for
its actions were pretextual.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 21, 2000
Date Carlton Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________ _________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Apparently complainant was an advisor to the organization and sought
mentors for new black managers. Although the agency allowed resources in
support of the organization, it objected to complainant's participation
and actions because she was not a member.