Iraida C. Rodriguez, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMar 3, 2000
01975085 (E.E.O.C. Mar. 3, 2000)

01975085

03-03-2000

Iraida C. Rodriguez, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Iraida C. Rodriguez v. Social Security Administration

01975085

March 3, 2000

Iraida C. Rodriguez, )

Complainant, )

) Appeal No. 01975085

v. ) Agency No. 96-0093-SSA

)

Kenneth S. Apfel, )

Commissioner, )

Social Security Administration, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

basis of sex (female) in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant

claims she was discriminated against when: (1) on December 6, 1995,

she was notified that her performance was unsatisfactory; and that, as

a result, her employment was terminated effective January 14, 1996<2>;

and (2) she was sexually harassed since her employment began on May 31,

1994. The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified at 29 C.F.R. � 1614.405). For the following

reasons, the agency's decision is AFFIRMED.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as an Administrative Aide, GS-5, at the agency's Elizabeth, NJ office.

Complainant was hired in May 1994. From September 1994 until December

1994, Complainant was out on disability related to her pregnancy.

From April 1995 until October 1995, complainant was out of work on

maternity leave. She was detailed to the Newark District Office, at her

request, on December 6, 1995. Throughout her employ with the Elizabeth

District office, complainant worked as the District Manager's secretary.

The District Manager retired in January 1997.

Complainant alleged that her supervisor, the District Manager (male)

sexually harassed her by making offensive statements in her presence that

created a threatening and hostile work environment. She testified that

once she was hired in May 1994, the District Manager made statements to

her which she interpreted as his indication to her that he had power over

her, and she needed to tolerate the offensive comments in order for her

to be successful at her job. Complainant alleged the District Manager

spoke to her about other employees' sex lives, indicated that he was the

father of her newborn baby, and that other employees were interested

in having a relationship with him. She alleged the District Manager

gave her a shoulder massage before she went out on maternity leave, and

kissed her on the cheek during a visit to the office with her newborn

baby, and upon her return to the office following her maternity leave.

Complainant also testified that upon her return to the office following

her maternity leave, she asked the District Manager what the gossip was

surrounding her return, to which he replied that the office gossip was

that he was going to get into "[complainant's] pants". He then asked her,

"when am I going to get into your pants." Complainant testified that

most of the comments were spoken in the privacy of his office.

Complainant testified she never spoke with the District Manager about

his comments and actions, but only looked at him seriously, obviously

displeased. Complainant testified all the District Manager did in return,

was assure her that he was "just joking." Complainant maintained that

it was her impression that she needed to tolerate the sexually explicit

comments in order to make the transition from probationary to permanent

full time employee. She did, however, testify that she spoke with the

Assistant District Manager (male) about the District Manager's comments

in November 1995. She testified he did nothing other than to say,

"is [the District Manager] still acting like that?"

Once she returned from her maternity leave, things began to change between

complainant and the District Manager. Specifically, she testified he

began to distance himself from her and got mad at her when she went to the

union representative about reduced hours, instead of approaching him.

Complainant testified she also distanced herself from the District

Manager at this time.

The District Manager denied most of complainant's allegations regarding

comments he allegedly made, as well as the massage. He admitted telling

complainant he believed his new step daughter was "drop dead gorgeous",

and admitted kissing complainant on the cheek while she visited the

office, as well as upon her return to work following her maternity leave.

He explained that the kisses were harmless expressions of friendship.

Moreover, he opined that most of complainant's allegations did not

constitute sexual harassment. For example, complainant's allegations that

he showed her his resume and salary, as well as his remark that the union

representative wore dirty clothes, did not constitute sexual harassment.

The other testimony in the record was from the Assistant District

Manager and other employees of the office. The Assistant District

Manager testified complainant did not confront him about the District

Manager's behavior in November 1995, as she alleged. Rather, he testified

complainant approached him on December 5, 1995, regarding a discussion

she had just had with the District Manager about a travel voucher.

The Assistant District Manager testified complainant stated at that time

she could "get [the District Manager] on sexual harassment if she wanted."

Although he asked her specifics at that time, she did not report any.

He testified he never inferred to complainant that the District Manager

behaved like this in the past. In fact, he testified he knew of no

other prior sexual harassment accusations brought against the District

Manager, so he would not have reason to make the statement as alleged

by complainant.

Eight of complainant's co-workers also testified for the record. All of

the employees within sight of complainant's desk denied ever seeing

the District Manager massage complainant's shoulders. Furthermore,

only one witness testified she ever heard the District Manager make

inappropriate comments to other women. For instance, she testified she

heard the District Manager ask a woman what her husband would think

when he found out she had her nails done. She did, however, testify

that upon complainant's visit to the office during her maternity leave,

she heard the District Manager state the baby's birth date, and then

remarked something to the effect that the baby looked like him (the

District Manager).

One other witness testified complainant spoke with her about offensive

comments the District Manager made to her during her employment.

She testified complainant told her the District Manager often told her

about another co-workers' intimate life in graphic detail. The witness

also testified complainant told her the District Manager stated

a co-worker was wearing a mini-skirt, and that she (the co-worker)

desired a relationship with him (the District Manager).

Regarding her proposed termination, complainant alleged that in November

1995, the District Manager gave her a negative performance review as

a result of her failure to submit to his sexual overtures. Then, on

December 6 or 7, 1995, the District Manager allegedly called complainant

into his office and spoke with her in a condescending manner regarding

performance issues. The District Manager informed complainant that

he could no longer keep her in the position, which she knew referred

to termination. Two days later complainant requested, and was granted,

a detail to the Newark District Office. She then initiated the instant

complaint by contacting an EEO counselor on December 8, 1995. In May 1996,

she was reassigned to the Clifton, NJ office.

Complainant filed a complaint on January 18, 1996. At the conclusion

of the investigation, she failed to exercise her right to a hearing.

Therefore, on May 29, 1997, the agency issued a final decision. On June

11, 1997, the agency issued a correction to its final decision.

THE FINAL AGENCY DECISION

The FAD concluded that the agency articulated legitimate,

nondiscriminatory reasons for complainant's performance appraisal

and proposed termination. The District Manager testified that when

complainant began working for the agency, she consistently made mistakes

in e-mails, time and attendance, and filing procedures. Although he

gave her a satisfactory performance rating in August 1994, he indicated

in the narrative that complainant did make some mistakes. He testified

that although he sometimes kept his criticisms to himself, he did advise

complainant that she needed improvement. In February 1995, he rated

complainant satisfactory, but still believed she was making mistakes.

He testified that he balanced these concerns with the fact that she was

new, and had been out on leave much of the time.

Upon complainant's return from maternity leave, the District Manager

decided to have the Assistant District Manager re-train complainant

in some areas, which was done in November 1995. He testified that on

December 5, 1995, complainant mishandled a travel voucher request, and

interrupted an interview with a Service Representative. When he spoke

with complainant about her performance problems, she became upset and

left the office.

The agency also explained in its final decision that when the District

Manager decided to terminate complainant, he consulted with the State

Director (male) and the personnel office. The personnel office determined

that complainant should not be terminated due to the short amount of

observation time of her performance, as well as limited documentation

of her deficiencies.

With respect to her sexual harassment claim, the agency found no

corroboration of complainant's version of events, other than the one

witness who reported what complainant told her. Furthermore, the

agency found once it was aware of the allegations, the State Director

took immediate and effective action. Specifically, the State Director

testified that once he learned of complainant's allegations of sexual

harassment, he removed her from the office, and transferred her to Newark,

as she requested. Thereafter, she was transferred to the Clifton, NJ

office, afforded refresher training and a new performance rating period.

Also, the agency conducted an investigation into office morale, and

found no one was able to confirm the sexual harassment allegations.

The State Director testified complainant never came to him regarding

allegations of sexual harassment. Finally, he testified he has never

heard complaints about the District Manager's behavior in the past.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the agency failed to consider a

number of her arguments. She argued that the agency failed to contact

one of her witnesses, and the District Manager's resignation in January

1997 constitutes his admission as to the veracity of her allegations.

In response to complainant's appeal, the agency asks that we affirm

the FAD. Also, it notes that complainant may have filed a civil action

in a U.S. District Court, however it was not sure at the time of its

response brief. The Commission notes that neither complainant, nor the

agency has advised us that complainant filed a civil action.

ANALYSIS AND FINDINGS

It is well-settled that sexual harassment in the workplace constitutes an

actionable form of sex discrimination under Title VII. Meritor Savings

Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim

of sexual harassment, appellant must show that: (1) she belongs to a

statutorily protected class; (2) she was subjected to unwelcome conduct

related to her gender, including sexual advances, requests for favors, or

other verbal or physical conduct of a sexual nature; (3) the harassment

complained of was based on sex; (4) the harassment had the purpose

or effect of unreasonably interfering with her work performance and/or

creating an intimidating, hostile, or offensive work environment; and

(5) there is a basis for imputing liability to the employer. See Henson

v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct

should be evaluated from the objective viewpoint of a reasonable person

in the victim's circumstances. Enforcement Guidance on Harris v. Forklift

Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

The preponderance of the evidence does not support a finding that

complainant was subjected to the conduct alleged. A review of the

testimony from witnesses revealed scarce corroborative evidence, where one

would expect some to be present. Although complainant contends to the

contrary, there is no evidence that the District Manager had a history

of complaints of sexual harassment. Further, although one witness was

aware of complainant's feelings about the District Manager's comments,

she relied primarily on information provided to her by complainant.

While this is evidence of complainant's concern about the District

Manager's comments, the record does not contain sufficient corroboration

of events. As to those events complainant proved occurred, we do not

find they were severe or pervasive enough to constitute harassment.

In this regard, we note the agency never carried through with its threat

to terminate complainant. Therefore, the conditions of complainant's

employment did not culminate in a tangible employment action. See,

Enforcement Guidance: Vicarious Liability for Unlawful Harassment by

Supervisors, EEOC Notice No. 915.002 (June 18, 1999). In such a case,

where the challenged employment action is not "tangible", it still may

be considered, along with other evidence, as part of a hostile work

environment claim. See, id. at 10.

Thus, in making our decision, we have considered the threat of termination

along with the record's indication that the District Manager, may have at

times, made inappropriate statements about other employees to complainant.

Despite some corroboration of these statements, we do not find sufficient

persuasive evidence of conduct which were "so objectively offensive

as to alter the conditions of complainant's employment." We note that

sexual flirtation or innuendo, even vulgar language that is trivial or

merely annoying, would probably not establish a hostile work environment.

EEOC Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice

No. 915-050 at 102.

In this case, the evidence supports complainant's position that the

District Manager kissed her on the cheek when she visited the office

with her newborn baby, as well as upon her return to the office from

maternity leave. As mentioned above, the evidence supports complainant's

position that the District Manager, on occasion, spoke inappropriately

to complainant regarding other employee's private lives. However,

considering this evidence, we are not persuaded that complainant was

subjected to a hostile work environment as a result of her sex.

We also find the preponderance of the evidence supports the agency's

position that complainant received a poor performance review in December

1995, and was threatened with termination due to performance problems

such as time and attendance, travel vouchers, and email. Complainant

herself admits to problems she had with her time and attendance duties.

Complainant's performance appraisals, though rated satisfactory, note

complainant's difficulties. The narrative portions of the appraisals

speak to complainant's need for future improvement, which supports the

District Manager's position in this regard.

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, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

March 3, 2000

Date Carlton M. 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant

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 web site at www.eeoc.gov.

2The agency never completed the termination process. Complainant was, at

her request, immediately detailed. Then, in May 1996, she was reassigned

to the Clifton District Office.