01975085
03-03-2000
Iraida C. Rodriguez, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Iraida C. Rodriguez v. Social Security Administration
01975085
March 3, 2000
Iraida C. Rodriguez, )
Complainant, )
) Appeal No. 01975085
v. ) Agency No. 96-0093-SSA
)
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of sex (female) in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant
claims she was discriminated against when: (1) on December 6, 1995,
she was notified that her performance was unsatisfactory; and that, as
a result, her employment was terminated effective January 14, 1996<2>;
and (2) she was sexually harassed since her employment began on May 31,
1994. The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the agency's decision is AFFIRMED.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as an Administrative Aide, GS-5, at the agency's Elizabeth, NJ office.
Complainant was hired in May 1994. From September 1994 until December
1994, Complainant was out on disability related to her pregnancy.
From April 1995 until October 1995, complainant was out of work on
maternity leave. She was detailed to the Newark District Office, at her
request, on December 6, 1995. Throughout her employ with the Elizabeth
District office, complainant worked as the District Manager's secretary.
The District Manager retired in January 1997.
Complainant alleged that her supervisor, the District Manager (male)
sexually harassed her by making offensive statements in her presence that
created a threatening and hostile work environment. She testified that
once she was hired in May 1994, the District Manager made statements to
her which she interpreted as his indication to her that he had power over
her, and she needed to tolerate the offensive comments in order for her
to be successful at her job. Complainant alleged the District Manager
spoke to her about other employees' sex lives, indicated that he was the
father of her newborn baby, and that other employees were interested
in having a relationship with him. She alleged the District Manager
gave her a shoulder massage before she went out on maternity leave, and
kissed her on the cheek during a visit to the office with her newborn
baby, and upon her return to the office following her maternity leave.
Complainant also testified that upon her return to the office following
her maternity leave, she asked the District Manager what the gossip was
surrounding her return, to which he replied that the office gossip was
that he was going to get into "[complainant's] pants". He then asked her,
"when am I going to get into your pants." Complainant testified that
most of the comments were spoken in the privacy of his office.
Complainant testified she never spoke with the District Manager about
his comments and actions, but only looked at him seriously, obviously
displeased. Complainant testified all the District Manager did in return,
was assure her that he was "just joking." Complainant maintained that
it was her impression that she needed to tolerate the sexually explicit
comments in order to make the transition from probationary to permanent
full time employee. She did, however, testify that she spoke with the
Assistant District Manager (male) about the District Manager's comments
in November 1995. She testified he did nothing other than to say,
"is [the District Manager] still acting like that?"
Once she returned from her maternity leave, things began to change between
complainant and the District Manager. Specifically, she testified he
began to distance himself from her and got mad at her when she went to the
union representative about reduced hours, instead of approaching him.
Complainant testified she also distanced herself from the District
Manager at this time.
The District Manager denied most of complainant's allegations regarding
comments he allegedly made, as well as the massage. He admitted telling
complainant he believed his new step daughter was "drop dead gorgeous",
and admitted kissing complainant on the cheek while she visited the
office, as well as upon her return to work following her maternity leave.
He explained that the kisses were harmless expressions of friendship.
Moreover, he opined that most of complainant's allegations did not
constitute sexual harassment. For example, complainant's allegations that
he showed her his resume and salary, as well as his remark that the union
representative wore dirty clothes, did not constitute sexual harassment.
The other testimony in the record was from the Assistant District
Manager and other employees of the office. The Assistant District
Manager testified complainant did not confront him about the District
Manager's behavior in November 1995, as she alleged. Rather, he testified
complainant approached him on December 5, 1995, regarding a discussion
she had just had with the District Manager about a travel voucher.
The Assistant District Manager testified complainant stated at that time
she could "get [the District Manager] on sexual harassment if she wanted."
Although he asked her specifics at that time, she did not report any.
He testified he never inferred to complainant that the District Manager
behaved like this in the past. In fact, he testified he knew of no
other prior sexual harassment accusations brought against the District
Manager, so he would not have reason to make the statement as alleged
by complainant.
Eight of complainant's co-workers also testified for the record. All of
the employees within sight of complainant's desk denied ever seeing
the District Manager massage complainant's shoulders. Furthermore,
only one witness testified she ever heard the District Manager make
inappropriate comments to other women. For instance, she testified she
heard the District Manager ask a woman what her husband would think
when he found out she had her nails done. She did, however, testify
that upon complainant's visit to the office during her maternity leave,
she heard the District Manager state the baby's birth date, and then
remarked something to the effect that the baby looked like him (the
District Manager).
One other witness testified complainant spoke with her about offensive
comments the District Manager made to her during her employment.
She testified complainant told her the District Manager often told her
about another co-workers' intimate life in graphic detail. The witness
also testified complainant told her the District Manager stated
a co-worker was wearing a mini-skirt, and that she (the co-worker)
desired a relationship with him (the District Manager).
Regarding her proposed termination, complainant alleged that in November
1995, the District Manager gave her a negative performance review as
a result of her failure to submit to his sexual overtures. Then, on
December 6 or 7, 1995, the District Manager allegedly called complainant
into his office and spoke with her in a condescending manner regarding
performance issues. The District Manager informed complainant that
he could no longer keep her in the position, which she knew referred
to termination. Two days later complainant requested, and was granted,
a detail to the Newark District Office. She then initiated the instant
complaint by contacting an EEO counselor on December 8, 1995. In May 1996,
she was reassigned to the Clifton, NJ office.
Complainant filed a complaint on January 18, 1996. At the conclusion
of the investigation, she failed to exercise her right to a hearing.
Therefore, on May 29, 1997, the agency issued a final decision. On June
11, 1997, the agency issued a correction to its final decision.
THE FINAL AGENCY DECISION
The FAD concluded that the agency articulated legitimate,
nondiscriminatory reasons for complainant's performance appraisal
and proposed termination. The District Manager testified that when
complainant began working for the agency, she consistently made mistakes
in e-mails, time and attendance, and filing procedures. Although he
gave her a satisfactory performance rating in August 1994, he indicated
in the narrative that complainant did make some mistakes. He testified
that although he sometimes kept his criticisms to himself, he did advise
complainant that she needed improvement. In February 1995, he rated
complainant satisfactory, but still believed she was making mistakes.
He testified that he balanced these concerns with the fact that she was
new, and had been out on leave much of the time.
Upon complainant's return from maternity leave, the District Manager
decided to have the Assistant District Manager re-train complainant
in some areas, which was done in November 1995. He testified that on
December 5, 1995, complainant mishandled a travel voucher request, and
interrupted an interview with a Service Representative. When he spoke
with complainant about her performance problems, she became upset and
left the office.
The agency also explained in its final decision that when the District
Manager decided to terminate complainant, he consulted with the State
Director (male) and the personnel office. The personnel office determined
that complainant should not be terminated due to the short amount of
observation time of her performance, as well as limited documentation
of her deficiencies.
With respect to her sexual harassment claim, the agency found no
corroboration of complainant's version of events, other than the one
witness who reported what complainant told her. Furthermore, the
agency found once it was aware of the allegations, the State Director
took immediate and effective action. Specifically, the State Director
testified that once he learned of complainant's allegations of sexual
harassment, he removed her from the office, and transferred her to Newark,
as she requested. Thereafter, she was transferred to the Clifton, NJ
office, afforded refresher training and a new performance rating period.
Also, the agency conducted an investigation into office morale, and
found no one was able to confirm the sexual harassment allegations.
The State Director testified complainant never came to him regarding
allegations of sexual harassment. Finally, he testified he has never
heard complaints about the District Manager's behavior in the past.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency failed to consider a
number of her arguments. She argued that the agency failed to contact
one of her witnesses, and the District Manager's resignation in January
1997 constitutes his admission as to the veracity of her allegations.
In response to complainant's appeal, the agency asks that we affirm
the FAD. Also, it notes that complainant may have filed a civil action
in a U.S. District Court, however it was not sure at the time of its
response brief. The Commission notes that neither complainant, nor the
agency has advised us that complainant filed a civil action.
ANALYSIS AND FINDINGS
It is well-settled that sexual harassment in the workplace constitutes an
actionable form of sex discrimination under Title VII. Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of sexual harassment, appellant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to unwelcome conduct
related to her gender, including sexual advances, requests for favors, or
other verbal or physical conduct of a sexual nature; (3) the harassment
complained of was based on sex; (4) the harassment had the purpose
or effect of unreasonably interfering with her work performance 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). The harasser's conduct
should be evaluated from the objective viewpoint of a reasonable person
in the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
The preponderance of the evidence does not support a finding that
complainant was subjected to the conduct alleged. A review of the
testimony from witnesses revealed scarce corroborative evidence, where one
would expect some to be present. Although complainant contends to the
contrary, there is no evidence that the District Manager had a history
of complaints of sexual harassment. Further, although one witness was
aware of complainant's feelings about the District Manager's comments,
she relied primarily on information provided to her by complainant.
While this is evidence of complainant's concern about the District
Manager's comments, the record does not contain sufficient corroboration
of events. As to those events complainant proved occurred, we do not
find they were severe or pervasive enough to constitute harassment.
In this regard, we note the agency never carried through with its threat
to terminate complainant. Therefore, the conditions of complainant's
employment did not culminate in a tangible employment action. See,
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by
Supervisors, EEOC Notice No. 915.002 (June 18, 1999). In such a case,
where the challenged employment action is not "tangible", it still may
be considered, along with other evidence, as part of a hostile work
environment claim. See, id. at 10.
Thus, in making our decision, we have considered the threat of termination
along with the record's indication that the District Manager, may have at
times, made inappropriate statements about other employees to complainant.
Despite some corroboration of these statements, we do not find sufficient
persuasive evidence of conduct which were "so objectively offensive
as to alter the conditions of complainant's employment." We note that
sexual flirtation or innuendo, even vulgar language that is trivial or
merely annoying, would probably not establish a hostile work environment.
EEOC Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice
No. 915-050 at 102.
In this case, the evidence supports complainant's position that the
District Manager kissed her on the cheek when she visited the office
with her newborn baby, as well as upon her return to the office from
maternity leave. As mentioned above, the evidence supports complainant's
position that the District Manager, on occasion, spoke inappropriately
to complainant regarding other employee's private lives. However,
considering this evidence, we are not persuaded that complainant was
subjected to a hostile work environment as a result of her sex.
We also find the preponderance of the evidence supports the agency's
position that complainant received a poor performance review in December
1995, and was threatened with termination due to performance problems
such as time and attendance, travel vouchers, and email. Complainant
herself admits to problems she had with her time and attendance duties.
Complainant's performance appraisals, though rated satisfactory, note
complainant's difficulties. The narrative portions of the appraisals
speak to complainant's need for future improvement, which supports the
District Manager's position in this regard.
CONCLUSION
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 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:
March 3, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 Equal Employment Assistant
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 web site at www.eeoc.gov.
2The agency never completed the termination process. Complainant was, at
her request, immediately detailed. Then, in May 1996, she was reassigned
to the Clifton District Office.