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.