0120120028
12-06-2012
Deborah H. Peacock, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Deborah H. Peacock,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120120028
Agency No. ATL-11-0242-SSA
DECISION
On September 7, 2011, Complainant filed an appeal from the Agency's August 8, 2011, final decision concerning her equal employment opportunity (EEO) complaint alleging 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant failed to demonstrate that she was subjected to harassment and discrimination as alleged.
ISSUE PRESENTED
The issue presented in this case is whether the Agency's final decision correctly found that Complainant was not subjected to harassment and discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative Teleservice Representative (TSR), GS-8, Unit 18, Section 3, of the Teleservice Center facility in Birmingham, Alabama.
On October 27, 2010, Complainant received her end-of-year Performance Assessment and Communications System (PACS) Appraisal for FYIO that contained a rating of three in the following areas: Interpersonal Skills, Participation, and Demonstrates Job Knowledge. Complainant received a rating of five in the Achieves Business Results area. Therefore, her overall rating for FY 10 was 3.5. Complainant indicated that the elements that she received 3s in were inaccurate, downplayed her contributions, contained errors and made reference to procedures that did not exist. Also, with respect to the "Achieves Business Results," even though Complainant received a five on that element she believed that her contributions were downplayed as compared to her coworkers' appraisals. Complainant argued that her ratings put her at a disadvantage with regard to promotions and awards as ratings were considered when determinations were made regarding these matters.
Complainant argues that after she assisted employees in filing EEO complaints and after she filed her own complaints her supervisor began to unjustifiably "nitpick" her performance. For example, she contends that errors were exaggerated, issues were noted on her service observations and verbal and written compliments from the 800 callers were ignored. Further, Complainant believed that age was a factor regarding her appraisal because her supervisor treated younger workers more favorably than older workers. She and three witnesses maintained that younger workers were favored because they did not ask questions and they did what they were told.
On February 17, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), age (62), and reprisal for prior protected EEO activity1 when on October 27, 2010, she received an unfavorable and inaccurate PACS appraisal for fiscal year FY10. She asserted that the low rating undercut her chances of gaining upward mobility within the Agency, prevented her from receiving performance awards and set her up for a probable non-selection for a benefit authorizer position that for which she had applied. Complainant also alleged that she has been subjected to a pattern and practice of harassment.2
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency found that even if it assumed arguendo that Complainant established a prima facie case of discrimination and reprisal, the Agency had articulated legitimate nondiscriminatory reasons for its action, namely, that Complainant was rated a 3 on Interpersonal Skills, Participation, and Demonstrates Job Knowledge based on her not accepting constructive feedback graciously, and based on observation reviews of her work. Management noted that evidence did not show that any other employees were treated more favorably. Out of the 18 individuals in Complainant's Unit, four employees, including Complainant received a 3.5 overall PACS rating. The other three were all substantially younger than Complainant, all were Black, and had no history of prior EEO activity. In comparison, all six who received 3.0 overall PACS ratings were Black; some, but not all had prior EEO activity; and their ages spanned 30 - 61 (as compared to Complainant who was 62 at the time). Likewise, of the eight employees who received 4.0 overall ratings, one was white (the only other Caucasian employee in the Unit); two had prior EEO activity; and their ages spanned 28 - 54. Moreover, the Agency maintained that Complainant's rating of 3.5 was considered to be above the fully successful level, and would not affect her ability for upward mobility or for receiving performance awards. Thus, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged or that discriminatory animus was involved in the decision to give Complainant a 3.5 appraisal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the appraisal rating is just a part of the ongoing harassment that she has faced with management. Complainant indicates that she has four other complaints of discrimination that should be considered together. According to Complainant, they will show that because of her protected bases she has been stuck in her current position for 23 years. She contends that Black employees receive the bulk of the performance awards and that younger workers are favored. Complainant indicates that her work as a union official has also subjected her to years of reprisal. Complainant also maintains that her harassment claim was improperly dismissed.
In response, the Agency contends that it articulated legitimate, nondiscriminatory reasons for its actions, and Complainant failed to show that those reasons were pretext for discrimination. The Agency argues that the finding of no discrimination should be upheld. Further, the Agency asserts that it properly dismissed Complainant's claim of harassment for untimely EEO Counselor contact. Notwithstanding, the Agency indicated that even if Complainant's harassment claim was determined to be timely, it was harmless error as the evidence shows that the three incidents complained of: (1) Complainant was yelled at regarding a case; (2) Complainant was questioned about putting a caller on hold to talk to a coworker; and (3) Complainant's supervisor asked about a delay in handling a call, were not severe or pervasive enough to establish a hostile work environment.
STANDARD OF REVIEW
As this is an appeal from a decision 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that even if we assume arguendo that Complainant established a prima facie case of reprisal and discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant performance appraisal was based on her performance, which included her inability to respond to constructive criticism, and caller observations. We find that other than Complainant's conclusory argument that she did not agree with the supervisor's assessment of her work, she has not provided any evidence which suggests that discriminatory animus was involved with regard to her PACS rating. In fact, the record shows that Complainant was advised during her mid-year review that the areas that she received 3s in were a problem. Complainant attempted to show pretext by providing the testimony of three witnesses that testified that younger workers were favored in the office, however, the evidence does not show in any significant way that younger workers obtained more favorable PACS ratings than Complainant. Accordingly, we find that Complainant has failed to demonstrate that reprisal and discrimination were factors in her PACS rating.
With regard to Complainant's claim of harassment, we find that a fair reading of her claim indicates that the three incidents complained of contributed to a PACS rating that she believed was lower than it should have been. Therefore, her harassment claim constitutes the following incidents: (1) on August 23, 2010, her supervisor berated her; (2) on August 25, 2010, her supervisor accused her of placing a claimant on hold to speak with a coworker; (3) on September 7, 2010, her supervisor inquired about a delay in Complainant's handling a call; and (4) on October 27, 2010, she received an unfavorable and inaccurate PACS appraisal for fiscal year FY10.
We find that the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing incidents (1), (2) and (3) for untimely EEO counselor contact. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable as long as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). Therefore, because incident (4), i.e., Complainant's October 27, 2010 PACS, took place within the 45-day period that proceeded Complainant's December 10, 2010 EEO counselor contact, we find that the Agency improperly dismissed these incidents on the grounds of untimely EEO Counselor contact.
We will now address Complainant's harassment claim. It is well-settled that harassment based on an individual's race, age and/or prior protected activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, 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 her statutorily protected class; (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; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
At the outset, we note that with respect to Complainant's claim that she was subjected to a hostile work environment with respect to her October 27, 2010 PACS, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination above that Complainant failed to establish that the receipt of her October 27, 2010 PACS was motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
Finally, we find that the remaining incidents complained of, being yelled at regarding a call, being questioned about putting a caller on hold to talk to a coworker, and being questioned about the length of time it took to handle a call, are not, even if accurately described by Complainant, sufficiently severe or pervasive enough to have unreasonable interfered with her work performance and/or to have created an intimidating, hostile, or offensive work environment. Therefore, we do not find that she established that she was subject to discriminatory harassment as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision which found that Complainant failed to show that she was discriminated against and/or subjected to harassment.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
___12/6/12_______________
Date
1 Complainant has engaged in prior EEO activity as a Complainant and as a representative of employees in her collateral duty position as a union steward.
2 The Agency dismissed Complainant's harassment allegation for untimely EEO Counselor counseling. Complainant complained of incidents dated: August 23, 2010, where her supervisor berated her; August 25, 2010, when her supervisor accused her of placing a claimant on hold to speak with a coworker; and September 7, 2010, where her supervisor inquired about a delay in Complainant's handling a call. The Agency maintained that Complainant did not seek EEO counseling until December 10, 2010, which made all these incidents untimely. For reasons that will be discussed below, we find that the Agency erred in dismissing these allegations on the grounds of untimely counselor contact.
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0120120028
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120028