Loriv.Gillis, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration,) Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01976284 (E.E.O.C. Nov. 5, 1999)

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