Willie P. Autry v. Social Security Administration
01997006
November 8, 2001
.
Willie P. Autry,
Complainant,
v.
Larry G. Massanari,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01997006
Agency No. 98-0109-SSA
DECISION
INTRODUCTION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
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.
The appeal is accepted pursuant to 29 C.F.R. § 1614.405. Complainant
alleged that she was discriminated against by the agency on the bases
of her race (Black) and age (over forty years old at the time of the
alleged discriminatory actions) when, subsequent to August 1, 1997,
complainant was the only Legal Assistant (LA) in her workplace whose
work production was monitored daily; her extra work assignments were
not factored into the assessment of her work production; she was denied
supervisory assistance; the agency required her, but not other LAs,
to take hearing assignments beyond her normally-assigned lunch period;
and she was required to record the names and social security numbers
of each claimant's case that she worked on during overtime. For the
following reasons, the FAD finding no discrimination is AFFIRMED.
BACKGROUND
The record reveals the following information pertinent to this appeal.
At all times relevant to this action, complainant was employed as a Legal
Assistant at the agency's Office of Hearings and Appeals in Jericho,
New York. Believing she was a victim of discrimination as described
above, complainant sought EEO counseling and subsequently filed a formal
complaint on November 6, 1997. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge, or, alternatively, to receive a final decision by
the agency. Complainant requested that the agency issue a FAD without
a hearing, which it did on June 17, 1999.
In its FAD, the agency concluded that complainant had failed to establish
a prima facie case of discrimination based upon race, age, or harassment.
The agency also asserted that, even if complainant had established a
prima facie case of race or age discrimination, the agency articulated
legitimate, nondiscriminatory reasons for the actions alleged to have
been discriminatory. Therefore, the agency found there had been no
discrimination against complainant. This appeal followed.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the
agency's decision is subject to de novo review by the Commission.
29 C.F.R. § 1614.405(a).
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d
292, 310 (5th Cir. 1981), and Loeb v. Textron, Inc., 600 F.2d 1003,
1019 (1st Cir. 1979) (requiring a showing that age was a determinative
factor, in the sense that “but for” age, complainant would not have
been subject to the adverse action at issue), the Commission agrees
with the agency that complainant failed to establish a prima facie case
of race or age discrimination. To establish a prima facie case of age
or race discrimination, the complainant must show that she is a member
of a protected group, that she was subjected to an adverse employment
action, and that she was treated less favorably than other similarly
situated employees outside of her protected group. Ebalo v. United
States Postal Service, EEOC Appeal No. 01982640 (Aug. 27, 2001). We note
that it is not necessary for complainant to rely strictly on comparative
evidence in order to establish an inference of discriminatory motivation
necessary to support a prima facie case. O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on
O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002,
at n.4 (Sept. 18, 1996). However, the ultimate burden of persuading
the trier of fact that the agency intentionally discriminated against
complainant remains at all times with complainant. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000) (quoting Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Upon review of the evidentiary record in the case, we conclude that
there was insufficient evidence presented by complainant to support a
finding of discrimination based on race, age, or harassment. In finding
that complainant had failed to establish a prima facie case of race
discrimination, the agency noted that complainant failed to show that
similarly situated employees not in her protected group were treated
differently under similar circumstances. As to complainant's claim that
the agency was discriminatorily monitoring her work production, evidence
was presented establishing that one other LA not of complainant's race, C1
(White, over forty years old), also experienced a decline in productivity
during the same period as complainant, and was not subsequently monitored
by the agency. However, the evidence shows that the decline in C1's
productivity was not as extreme as that experienced by complainant, and
that C1 is under a different supervisor than complainant. In light of
the evidence presented, we conclude the agency properly found that C1 was
not a similarly situated employee. Furthermore, even if we assume for the
sake of argument that complainant had in fact established her prima facie
case as to this claim, she has presented no other evidence challenging the
agency's articulated legitimate, nondiscriminatory reason for monitoring
her work production—her marked drop in performance in the months of July
and August 1997. Therefore, complainant has failed to present sufficient
evidence to support a finding of discrimination on this claim.
As for complainant's claim that she was denied supervisory assistance,
the agency addressed this claim by focusing on the evidence provided to
the contrary by the Hearing Office Manager (HOM) assigned to assist
complainant in improving her work production. The HOM stated in
her affidavit that complainant's work was monitored from August 1997
through April 1998; that during that time the HOM provided complainant
any assistance needed; that the HOM set aside part of her work day to
address any problems complainant may have had; that there had been an
“open line of communication” between the HOM and complainant; and that
in January 1998 a protocol was established by which the HOM would address
at a specific time any problems complainant had experienced or questions
she had. We note that complainant asserted in her complaint that the
lack of supervisory assistance complained of took place on two specific
dates—August 12, 1997 and September 5, 1997—when she specifically asked
her supervisor, S1, for assistance with her work, and on both occasions
complainant received no reply. However, complainant provided no evidence
that any other employees had requested assistance and the request had not
been ignored, nor did she raise any challenge to the HOM's statements.
Accordingly, we agree with the agency that complainant has failed to
establish her prima facie case on this claim.
As for complainant's claim that she was the only LA required to work
her assigned hearings through her lunch period, the record showed that
two other LAs provided through affidavit that LAs normally take a later
lunch break if a hearing extends into their regular lunch period, and
that if the LA needs to adhere to the assigned lunch period, she can
notify a supervisor and appropriate actions are taken. The record also
showed that complainant did not notify her supervisor when she needed
to be relieved for lunch. Complainant presented no evidence that other
employees not of her race or age were treated more favorably than she
was in regard to working into assigned lunch periods.
We note that the agency's FAD failed to address complainant's claims that
the agency discriminated against her when it required her to log the
social security number from every case she worked on during overtime,
and when it failed to factor her extra work assignments when assessing
her performance. However, the record reflects that the agency applied
these policies to all the LAs in complainant's workplace, and complainant
has failed to show any other LAs to whom these policies were not applied.
As complainant has proffered no evidence of any comparative employees
being treated more favorably than herself, she has failed to establish
her prima facie case, via comparative evidence, of race discrimination.
While complainant is not limited to presenting comparative evidence
to establish a prima facie case of discrimination, complainant has not
presented any other evidence that affords a sufficient basis from which
to draw an inference of discrimination. Accordingly, the agency was
correct to conclude that complainant had failed to establish her prima
facie case of race discrimination.
As for complainant's age discrimination claim, the agency concluded that
complainant had failed to prove that complainant's age actually played
a determinative role in the employment actions of which complainant
complained. See Reeves, 530 U.S. at 141. We agree that complainant
has failed to put forward any evidence that would tend to establish that
her age played any role in the agency's actions.<1>
Turning to complainant's harassment claim, the United States Supreme
Court has defined hostile workplace harassment in violation of Title
VII or the ADEA as existing when the workplace is permeated with
“sufficiently severe or pervasive” discriminatory activity to “alter
the conditions of the victim's employment and create an abusive working
environment.” Harris v. Forklift Syst., Inc., 510 U.S. 17, 21 (1993)
(quoting in part Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65,
67 (1986); see also Houghton v. Department of the Army, EEOC Appeal
No. 01990244 (Oct. 5, 2001) (recognizing extension of Harris harassment
analysis to claims of age discrimination). To establish a prima facie
case of hostile workplace 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. Hurston v. United States Postal
Service, Appeal No. 01986458 (Jan. 19, 2001) (citing 29 C.F.R. § 1604.11).
The factors to consider in determining whether a working environment
is hostile include the frequency of the alleged discriminatory conduct,
its severity, whether it is physically threatening or humiliating, and
whether it unreasonably interferes with an employee's work performance.
Harris, 510 U.S. at 23; EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6.
The agency concluded that the activities complained of were not
sufficiently pervasive or severe to support a finding of harassment.
We agree that a finding of discriminatory harassment is not supportable,
for the simple reason that, as stated above, complainant has failed
to establish that the activities complained of were based upon her
protected class. As such, even if we assume for the sake of argument
that the agency actions at issue were severe or pervasive in nature, it
is impossible to conclude that these actions contributed to the presence
of a discriminatory hostile work environment for complainant.
For the aforementioned reasons, we AFFIRM the FAD finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
November 8, 2001
Date
1 The agency concluded that complainant had failed to establish
a prima facie case of age discrimination because the record
failed to reflect that her age played a determinative role in
the agency's actions. We note that, for a complainant to prevail
in an age discrimination claim he or she must prove age actually
played a determinative role in the employment actions at issue,
but such a showing is not required to establish a prima facie
case of age discrimination. See Reeves, 530 U.S. at 141-42
(describing separately burden on complainant to prove age played
a determinative role in the agency action, and requirements for
establishing a prima facie case of age discrimination).
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