Malinda A. Tillery, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01976075 (E.E.O.C. Feb. 10, 2000)

01976075

02-10-2000

Malinda A. Tillery, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Malinda A. Tillery v. Social Security Administration

01976075

February 10, 2000

.

Malinda A. Tillery,

Complainant,

v.

Kenneth S. Apfel,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01976075

Agency Nos. SSA-0016-96, SSA-0075-96, SSA-0161-96

Hearing Nos. 120-96-5702X, 120-97-4065X, 120-97-4066X, 120-97-4067X

DECISION

Complainant filed a timely appeal with this Commission from the agency's

final decision (FAD) concerning her complaints of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. �2000e et seq.; and the Rehabilitation Act

of 1973, as amended, 29 U.S.C. �791, et seq.<1> We accept the appeal

in accordance with EEOC Order No. 960.001. For the reasons that follow,

the Commission AFFIRMS the agency's FAD.

Complainant claims she was harassed on the bases of race (Black),

sex (female), reprisal (prior EEO activity), and physical disability

(fibromyalgia and migraine headaches), as evidenced by the following

incidents:

1. Commencing in April 1995, she was the only worker in her division whose

work habits and processing time were monitored, including the requirement

that she leave the supervisor a note concerning her whereabouts every

time she left her desk;

2. On May 25, 1995, she was charged with one-half hour of annual leave

for leaving the premises during an in-office picnic;

3. On August 30 and 31, 1995, she was charged with a total of 5 hours

of AWOL (absent without leave) when she was away from her desk 2 1/2

hours on each of these days;

4. On September 19, 1995, she received a notice placing her on leave

restrictions;

5. On September 21,1995, she observed her first line supervisor (S)

place information in a "memory jogger" file he maintained on her alone;

6. On October 2, 1995, S removed completed work from her desk, requiring

her to re-do 31 printouts;

7. On October 10, 1995, S challenged her whereabouts as annotated (Career

Life Resource Center) on the note she was required to leave for him when

she left her desk;

8. In October 1995, she was suspended for two weeks concerning security

violations;<2> and,

9. On November 21, 1995, S telephonically interrupted her EEO counseling

session, and asked the counselor to send her back to her desk.

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

as a GS-4 Data Transcriber at the agency's Division of Litigation, Office

of the General Counsel. Believing she was a victim of discrimination,

complainant sought EEO counseling and, subsequently, filed the four formal

complaints captioned above. At the conclusion of the investigation,

complainant received a copy of the investigative reports and requested

a hearing before an EEOC Administrative Judge (AJ). Following a hearing,

the AJ issued a Recommended Decision (RD) finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of harassment on any of the claimed bases, noting that the identified

incidents, taken together, were not sufficiently severe or pervasive as to

constitute a hostile work environment, and, more significantly, that none

of them were motivated by discriminatory animus. See Harris v. Forklift

Systems, Inc., 510 U.S. 17 (1993); and EEOC Notice No. 915.002 (March 8,

1994), Enforcement Guidance of Harris v. Forklift Systems, Inc. 3,6; and

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,

1997).

In addressing complainant's disability claim, the AJ determined that

complainant failed to provide sufficient evidence that the responsible

management officials were aware of her claimed disability, and also

that the medical evidence she presented "after-the-fact" did not

demonstrated that she was a "qualified individual" with a disability,

as defined under the criteria of the Rehabilitation Act. The AJ held

that the responsible management officials could not have harassed

complainant due to her"disability" when they did not know she had one

or was even claiming to have one.<3> In this regard, we note that it

is well established that complainants must make a plausible showing that

there is a nexus or causal relationship between the disabling condition

and the disputed adverse action. See Bridges v. U.S. Postal Service,

EEOC Appeal No. 01891679 (January 24, 1990).

Next, regarding complainant's claim of race and sex discrimination,

the AJ found that she did not present evidence which would rise to

even an inference that the actions at issue were motivated by sex or

race animus. Moreover, the AJ found that S, in consultation with other

management officials, took the appropriate managerial actions in each of

the enumerated incidents. More specifically, the AJ held that S was not

"harassing" complainant by "monitoring" her work, as claimed in incident

1, but that all of his actions in this regard (looking over her partition

when he needed her and leaving her notes requesting that certain work be

done) were well within the context of carrying out the normal managerial

responsibilities of a first line supervisor. Regarding those incidents

concerning other work monitoring and the requirement that complainant

leave S a note when absent from her desk (incidents 2, 3, 7, and 9),

as well as the actions associated with the leave related incidents,

(incident 4, and also included as an element in incidents 2 and 3), the AJ

found that these actions were all appropriate responses to complainant's

poor leave record, frequent un-excused and unexplained absences, and her

persistent habit of disappearing from her desk for long periods of time

during the work day and failing to accurately account for this time.

Regarding incident 5, the AJ also found that the supervisor's maintenance

of a "memory jogger" file was consistent with personnel rules, and

that his discussing pertinent contents during an EEO inquiry was not a

violation of the union agreement or agency policy. Regarding incident 6,

the AJ found that the evidence failed to show that S removed the work

in question from complainant's desk, and to identify S as a culprit

was pure speculation. In addressing incident 9, when S called the EEO

office and asked that complainant return to her desk, the AJ found

that it was appropriate in this instance because complainant had

been away from her desk most of the morning, and was urgently needed

to complete an assignment. Moreover, the AJ found that this did not

constitute interference with the EEO process because complainant was

in no way prevented from engaging in EEO activity at any other time,

and was able to fully pursue the instant complaints. With respect to

the security violation referenced in incident 8, the AJ held that the

agency's policy permitted termination for this type of infraction, and

that only receiving a two week suspension was strong evidence of a lack

of animus on the part of S and the other management officials. The AJ

also held that although the record showed that complainant was the only

employee who worked under the requirement to leave S notes and to have a

"memory jogger" file maintained by S, she was also the only employee who

had committed such extensive infractions of leave and workday absences

from her duty station.

Finally, the AJ concluded that complainant did not establish her claim

of reprisal because although she showed that the responsible management

officials were aware of her prior EEO activity (in 1992 and September

1995 regarding counselor contact concerning the instant complaints),

she could not establish a causal nexus between this activity and the

alleged incidents of harassment because the record overwhelming showed

that each of agency's actions were appropriate and legitimate responses

to complainant's continuous infractions.

Even if complainant had established a prima facie case on any of the

claimed bases, the AJ concluded that the agency's articulated legitimate

reasons for its actions, as discussed above, were devoid of pretext. In

making this finding, the AJ noted that she resolved conflicting testimony

in favor of the agency based on credibility determinations. In reviewing

these determinations, we find that they are fully and carefully analyzed

in the RD, and supported by the record.

The agency's FAD adopted the AJ's RD. Complainant makes no new contentions

on appeal, and the agency requests that we affirm its FAD.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

Administrative Judge will be upheld if supported by substantial evidence

in the record. Substantial evidence is defined as "such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion." Universal Camera Corp. v. National Labor Relations

Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding that

discriminatory intent did not exist is a factual finding. See Pullman -

Standard Co. v. Swint, 456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that the

AJ's RD summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We concur that complainant failed to

present sufficient to show that the agency's actions constituted a hostile

work environment, or were motivated by retaliation or discriminatory

animus. We discern no basis to disturb the AJ's findings. 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 agency's 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 10, 2000

__________________

Date

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.

2Although complainant did not raise this in her complaints, it was

addressed during the hearing and treated as an alleged incident of

harassment by the Administrative Judge.

3The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: WWW.EEOC.GOV.