01a00227
04-04-2000
Loretta Cafaro, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Loretta Cafaro, )
Complainant, )
) Appeal No. 01A00227
v. ) Agency No. 98-0338-SSA
)
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint
of unlawful employment discrimination on the bases of race (White),
religion (Catholic), age (DOB: September 13, 1944), and reprisal (prior
EEO activity), 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 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented is whether complainant has shown by preponderant
evidence that the alleged incidents constituted discrimination against
her on the basis of race, age, religion, and/or reprisal.
BACKGROUND
The record reveals that complainant, a Hearing Clerk at the agency's
Office of Hearings and Appeals, New York, New York, filed a formal
EEO complaint with the agency on March 7, 1998. In her complaint,
she alleged that the agency had discriminated against her on the bases
listed above when: (1) on September 17, 1997, she was accused of jamming
the office printer; (2) on September 18, 1997, a co-worker shouted at her
to turn down the volume on her radio; (3) on September 19, 1997, another
co-worker stood over her and yelled at her to get off the computer and
a supervisor ordered her to leave the computer; (4) on September 19,
1997, complainant did not receive a cash award; (5) from September 19,
1997 through November 3, 1997, complainant took six weeks of leave
without pay due to the alleged harassment and threatened to be placed
on absence without leave; (6) her request to move her desk was denied;
(7) her work was sabotaged when a Dictaphone was withheld and her work
was deleted from a diskette; (8) on December 15, 1997, complainant
became aware that she was not selected for a Legal Assistant position;
(9) in October 1997, she became aware that she was not selected for a
Social Insurance Specialist position; and (10) she became aware that
she was not selected for another Social Insurance Specialist position
in another agency field office.
The agency accepted the complaint for investigation. Upon receiving the
report of investigation, complainant was informed of her right to request
a hearing before an EEOC Administrative Judge or a final decision from
the agency without a hearing. Complainant failed to contact the agency
with a response, accordingly, the agency issued its final agency decision
(FAD). The FAD found that complainant failed to state a prima facie case
of discrimination on the bases of race, age, religion, and reprisal.
The FAD further noted that had complainant established her prima facie
case of race, age, religion, and reprisal discrimination, she failed
to demonstrate by preponderant evidence that the agency's articulated
reasons were pretext for discrimination.
This appeal followed.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's determination of
complainant's disparate treatment claims based on race, age, religion,
and reprisal, because the preponderance of the evidence of record does
not establish that discrimination or retaliation occurred.
As to complainant's claim of harassment, the Commission finds that the
FAD did not apply the appropriate analysis. Complainant alleged that
she suffered from discriminatory harassment based on her race, age,
religion, and reprisal. It is well-settled that harassment based on an
individual's race, religion, age, and prior EEO activity is actionable.
See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order
to establish a claim of harassment under those bases, the complainant
must show that: (1) she belongs to the statutorily protected classes;
(2) she was subjected to unwelcome conduct related to her membership
in those classes; (3) the harassment complained of was based on race,
age, religion, or prior EEO activity; (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).
In this case, complainant alleged that the incidents raised in her EEO
complaint were part of ongoing discriminatory harassment. Upon review
of the record, the Commission concludes that complainant demonstrated
that she is a member of the protected classes. The Commission, however,
finds that complainant failed to establish that the alleged incidents
were related to her protected classes. The Commission further notes
that some of the alleged incidents were more likely than not the result
of a personality conflict between complainant and her co-workers and
supervisors, and not motivated by discriminatory animus. We also find
that the incidents do not constitute actionable harassment Therefore,
the Commission finds that complainant failed to demonstrate that she
suffered from discriminatory harassment. Accordingly, we affirm the
FAD with regard to complainant's allegation of discrimination based on
harassment.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and the agency's response, the Commission affirms
the agency's final decision.
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).
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:
April 4, 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 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.