01976284
11-05-1999
Lori V. Gillis, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration,) Agency.
Lori V. Gillis, )
Appellant, )
) Appeal No. 01976284
v. ) Agency No. 96-0606-SSA
)
)
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration,)
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black) and sex (female), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges she was discriminated against when: (1) from October
1995 to May 1996, she was subjected to a hostile work environment created
by her immediate supervisor (�AS�); and (2) she was terminated on May 24,
1996. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED as MODIFIED.
BACKGROUND
The record reveals that during the relevant time, appellant was employed
as an Attorney Advisor at the agency's Office of Hearings and Appeals
in Chicago, Illinois. The agency hired appellant in August 1995 for a
two-year temporary appointment. Beginning in October 1995, appellant
came under the supervision of AS. The evidence showed that from the
beginning, appellant and AS had a contentious professional relationship.
At his first staff meeting, AS informed appellant that she was �lucky� in
relation to her attendance at the meeting. Appellant stated that AS's
tone was nasty and implied that he was out to get her. AS stated that
his comment related to his surprise that appellant knew the location of
meeting because he had to inform the other new employees of the location.
Appellant stated that prior to AS's arrival, her mentors spoke well of
her work. She explained that after AS arrived, her work was subject to
extended review and comment by AS which caused excessive delay in the
total turnaround time for the completion of her work. AS responded that
appellant demonstrated significant difficulty in following proper unit
format and timely completing decisions. AS further stated that when he
began at the facility, he reviewed the work of all the Attorney Advisors
and did not hold appellant's work to any higher standard. Additionally,
AS stated that appellant was reluctant to accept criticism or suggestions
on how to improve her decisions.
In January 1996, AS took the facility's other Attorney Advisors off review
while appellant and another female Attorney Advisor remained on review.
Appellant pointed out that because she remained on review, she was not
allowed to work overtime as provided to the other Attorney Advisors who
had increased productivity due to the increased number of work hours.
AS contended that appellant remained on review after January 1996,
because she had not completed a sufficient number of decisions nor
demonstrated an adequate performance proficiency.
According to AS, he and appellant met on March 1, 1996, where he counseled
appellant about her lack of productivity. Appellant stated that during
the March 1, 1996 meeting, AS informed her that she was no longer
on review and that she needed to increase her productivity or else.
On May 3, 1996, AS issued appellant a letter informing her that he had
recommended termination due to the continual deficiency in the quality
and quantity of her work. Specifically, AS noted that appellant had
only completed six cases for the months of March and April while other
attorneys completed an average of 28.8 decisions for the same period.
AS made specific reference to errors in several of appellant's decisions.
The Regional Management Officer (�RMO�) issued a letter of termination
also dated May 3, 1996, basically restating AS's contentions. On the same
day, appellant sent RMO a letter explaining that AS's evaluation of her
work was incorrect and requesting an independent assessment of her work.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on May 3, 1996.
At the conclusion of the investigation, appellant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Appellant
requested that the agency issue a FAD.
In its FAD, the agency held that appellant failed to demonstrate that she
was a victim of unlawful discrimination. Specifically, the FAD concluded
that the agency proffered legitimate, nondiscriminatory reasons for all
its actions, namely, that appellant was unproductive, unable to perform
at an adequate level of proficiency, and reluctant to accept criticism.
The FAD concluded that appellant failed to establish by a preponderance
of evidence that the agency's articulated reasons were pretext for
unlawful discrimination.
On appeal, appellant contends that the FAD only considered the
self-serving statement of the responsible management officials and failed
to consider the evidence in its entirety. The agency contends that the
FAD correctly analyzed appellant's claims and requests that we affirm
the FAD.
ANALYSIS AND FINDINGS
Initially, we note that from the beginning of appellant's processing of
her EEO compliant, she alleged harassment based on race and sex. The FAD,
however, only provides a disparate treatment analysis of the case without
addressing appellant's harassment claims. As the FAD failed to provide an
analysis of the harassment claims, the Commission will address them here.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently patterned or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14,
1998)(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).
In determining that a working environment is hostile, factors to
consider are 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. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002
(March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems,
Inc. at 3, 6. The Supreme Court stated: �Conduct that is not severe
or pervasive enough to create an objectively hostile work environment -
an environment that a reasonable person would find hostile or abusive -
is beyond Title VII's purview.� Harris, 510 U.S. at 22 (1993).
To establish a prima facie case of hostile environment harassment, a
complainant must show that: (1) she belongs to 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, Appeal No. 01965238 (October
16, 1998); 29 C.F.R. �1604.11. Evidence of the general work atmosphere,
involving employees other than the complainant, also is relevant to the
issue of whether a hostile environment existed in violation of Title VII.
Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant
part and rev'd in part, Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986).
After reviewing the record, the Commission finds that appellant failed to
present sufficient credible evidence establishing that she was subjected
to harassment based on either race and sex. The evidence does not
support a finding that AS's conduct created a hostile work environment.
While appellant may have perceived AS's conduct as harassing, we find that
his questioning of her work reasonable in light of his legitimate concerns
with her performance and productivity. We further find that while the
record offers ample evidence of the animosity between appellant and AS, it
appears that the discord was caused by other factors such as appellant's
standing up to AS and questioning his decisions. Finally, with regard to
the letter recommending termination, AS identified specific deficiencies
in appellant's work which justified his recommendation. We find that
the substance of appellant's allegation concerns the differences in how
AS perceived her work. Appellant presents no evidence that any of As's
actions were objectively offensive, abusive or hostile, and otherwise
taken in order to harass her. Accordingly, we find no credible evidence
indicating that appellant was subjected to harassment as alleged.
Using a disparate treatment analysis, we find that appellant failed to
prove by a preponderance of the evidence that the agency articulated
reasons were pretext for unlawful race or sex discrimination. AS states
that appellant performed at an unacceptable level which eventually led
to her termination. Specifically, AS states that appellant exhibited
an inability to produce decisions in a timely manner and in sufficient
quantity to carry her fair share of the workload. While appellant
has shown that AS subjected her work to extended review, we find
that she has not shown that AS reasons for his actions were based on
anything other than his concerns with her productivity. We find that
the evidence supports AS's statement that appellant remained on review
longer than other attorneys in the office because it took her longer
than the others to produce a sufficient number of decisions to justify
ending the review period. The evidence also supports AS's reasons for
recommending her termination.
CONCLUSION
Therefore, after a careful review of the record, including appellant'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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
November 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations