0120121094
05-10-2012
Linda D. Owen, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Linda D. Owen,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120121094
Agency No. ATL-11-0550-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 23, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
On September 12, 2010, Complainant was hired as a Senior Case Technician (SCT), GS-0986-7, at the Agency's Office of Disability Adjudication and Review in Fayetteville, North Carolina, under a two-year Federal Career Intern Program. Complainant was subjected to a one-year probationary period.
On June 7, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected to her to harassment and a hostile work environment on the bases of race (Caucasian) and age (40) when:
on April 27, 2011, she was forced to resign from her SCT position during her probationary period.
After the investigation of the formal complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on November 23, 2011, pursuant to 29 C.F.R. � 1614.110(b).
In its November 23, 2011 final decision, the Agency found that assuming arguendo Complainant established a prima facie case of race and age discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. Specifically, the Agency found that Complainant's second-level supervisor proposed that Complainant be terminated during her probationary period because of unsatisfactory performance and misconduct.
Regarding the constructive discharge claim, the Agency found that the evidence of record did not establish that Complainant was constructively discharged based on race and age. The Agency found that while Agency management proposed that Complainant be terminated based on her unsatisfactory performance and misconduct, she was given an option to resign which she voluntarily chose.
Complainant's second-level supervisor (S2) stated that he proposed that Complainant be terminated during her probationary period for "(1) lack of professional, courtesy, dignity and respect for others, and (2) misconduct." S2 stated that when he notified Complainant on April 27, 2011 that he was planning to terminate her during her probationary period, she "questioned why she was being terminated, [and] I advised [Complainant] that her demeanor was unacceptable and it did not meet the standard of federal employees." S2 stated that he based his decision to terminate Complainant based on feedback from management officials.
S2 stated that Complainant's first-level supervisor (S1) "advised me on the employee's pattern of misconduct, loud outspoken demeanor and borderline insubordination. [A named Hearing Office Chief Administrative Law Judge] advised me regarding [Complainant's] demeanor during an argument she overheard between [Complainant] and [a named probationary employee (E1)]." S2 stated that after discussing the incident between Complainant and E1, management "made a determination that such behavior was unprofessional and contributed to low morale within the office." S2 also stated that on several occasions he overheard Complainant "being loud and overbearing with other employees, including the Judges."
S2 stated that Complainant was not provided additional time to improve her conduct prior to being proposed for termination because she "demonstrated a history of misconduct, and mannerisms that were counterproductive to this office environment." S2 stated that Complainant chose to resign "to avoid being terminated from employment." S2 stated that Complainant was not forced to resign because "she was given the option of resigning or be terminated from employment." S2 stated that during the relevant period, E1 chose to resign from the Agency "to avoid termination from employment." Moreover, S2 stated that Complainant's race and age were not factors in his determination to propose her for termination during her probationary period.
S1 stated that she shared information with S2 concerning Complainant's pattern of behavior. For instance, S1 stated that on March 28, 2011, she heard "a raised voice which sounded like quarreling or a disagreement. I stepped outside of my office to hear what was being said but the voice dropped. I returned to my desk; however, I again heard raised voices. When I approached the SCT area, I realized that the raised voice was coming from [Complainant]. I realized that she was talking on the phone with a raised voice. I stood behind her for a couple of minutes to ascertain what was going on. I realized that she was speaking to [a named claimant]. When she turned around and saw me standing there, I advised her to see me when she was finished, and I returned to my office."
S1 stated that when Complainant came to see her, she informed Complainant that it was inappropriate to engage the claimant in the manner that she did and that it should not happen again. S1 stated "I told her even if the claimant was belligerent . . . that we could not respond in kind. I added that she should have found a way to terminate the call and advise me on the matter." S1 stated that Complainant told her that the claimant called her and a named judge a liar and "I told her that she still could not respond in the way that she did with the claimant."
The record reflects that on April 11, 2011, Complainant alleged that E1 asked her questions about preparing vocational expert invoices and that E1 explained to her how she had prepared them but that she did not know whether it was the right or wrong process. Complainant alleged that E1 told her supervisor that Complainant told her how she should process the invoices. Complainant stated she explained to E1 that this was her process but she did not know if it was right or wrong. Complainant stated that she asked E1 not to tell management she had told her what to do since E1 simply explained the process to her and did not tell her what to do or the manner in which to do it. S1 stated that on April 12, 2011, she asked Complainant to explain the verbal altercation between her and E1 on April 11, 2011. S1 stated that she did not complete the discussion because Complainant "changed the discussion to suggest that I did not like her and she requested a 'rep.' I then informed her that the conversation was finished and requested a write-up of the incident that occurred on the day before."
Further, S1 stated that she informed S1 that Complainant "was angry and belligerent on March 28, 2011. She made inappropriate remarks and began to walk away. On April 12, 2011, she accused me of disliking her." S1 also stated that she received complaints from Complainant's co-workers and advised them "to try to find a way to work through the disagreement(s)." S1 stated that she recommended that Complainant be terminated during her probationary period because "issues between [Complainant] and other employees and a claimant had come to my attention over time. I discussed these issues with [Complainant], but her conduct was not improving and was getting worse."
With respect to Complainant's allegation that she was forced to resign from being harassed as a result of her race and age, S1 denied it. Specifically, S1 stated that Complainant "was not forced to resign to being harassed or as a result of discrimination based on her race and age. The decision to terminate was solely based on her failure to perform her duties in a satisfactory manner."
The Hearing Office Chief Administrative Law Judge (J1) stated that on April 11, 2011, she observed the verbal altercation between Complainant and E1. Specifically, J1 stated that she would characterize the April 11, 2011 disturbance "as greater than small. Each employee in the open work space heard the verbal exchange between the two women, as could employees in offices that opened out into the open area." J1 further stated "I heard raised voices with a tone that was not professional or friendly. The tone of the voices caught my attention and caused me to get up and walk out of my office. The two women were not looking at each other during the verbal exchange."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the EEO investigator failed to pursue significant witness statements. Specifically, Complainant states that the information that the investigator would have obtained from her co-workers "who were not questioned would have demonstrated that there was no cause for my termination based on performance or insubordination, which was alleged. The information would have shown that supervisors treat black employees different than white employees and that my termination was based on the color of my skin rather than the quality of my work."
In support of her assertions, Complainant submits affidavits from an Administrative Law Judge and a Lead Case Technician stating that Complainant was a reliable employee who performed her job well.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. Harassment is actionable only if the conduct to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997); Humphrey v. U. S. Postal Service, EEOC Appeal No. 01965238 (October 16, 1998). 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). In a case of co-worker harassment such as the instant one, the Agency is only responsible for acts of harassment in the workplace where management knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. See 29 C.F.R. � 1604.11(d); Rainbolt v. Department of Transportation, EEOC Appeal No. 0120033857 (February 2, 2007).
In this case, the record evidence does not support a finding that Complainant was subjected to any Agency action hat rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her race and age.
Constructive Discharge
Complainant alleges that the alleged harassment forced her to resign. A constructive discharge occurs when an employer deliberately renders an employee's working conditions so intolerable that the individual is forced to retire from her position. Constructive discharge only occurs when the Agency's actions were taken with the intention of forcing the employee to retire. Three elements must be proven to substantiate a claim of constructive discharge: 1) a reasonable person in Complainant's position would have found the working conditions intolerable; 2) the conduct causing the intolerable working conditions is an EEO violation; and 3) Complainant's resignation was caused by the intolerable working conditions. See Taylor v. Army and Air Force Exchange Service, EEOC Request No. 05900630 (July 20, 1990); see also Perricone v. United States Postal Service, EEOC Request No. 05900135 (June 11, 1990).
As discussed above, the Agency's conduct did not amount to unlawful employment discrimination. We discern nothing in the present record to support a finding that Complainant has established that her voluntary resignation constituted a constructive discharge.
Complainant, on appeal, argued that the EEO Investigator conducted an inadequate investigation by not obtaining significant witness statements and relevant documents. We note Complainant's extensive arguments on appeal, which include but are not limited to purported deficiencies in the investigation, the Agency's purported determination relying upon evidence not of record; and the Agency's purported failure to review the evidence in the light most favorable to Complainant. We have reviewed Complainant's appellate arguments but nonetheless determine that the Agency properly conducted an adequate investigation of the instant complaint. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
May 10, 2012
__________________
Date
2
01-2012-1094
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2 0120121094
8 0120121094