0120121058
06-27-2012
Tamekia V. Johnson, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Tamekia V. Johnson,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120121058
Agency No. ATL-11-0080-SSA
DECISION
On December 29, 2011, Complainant filed an appeal from the Agency's November 30, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative at the Agency's Field Office in Pensacola, Florida. The record indicated that Complainant had begun and informal complaint regarding harassment based on race against the Technical Expert (TE). Following her complaints of the hostile work environment, Complainant indicated that her work changed. She was transferred out from her assignment in the Administrative Law Judge (ALJ) unit to the Initial Claims unit.
On November 2, 2010, Complainant contacted the EEO Counselor. Subsequently, on December 8, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was subjected to a hostile work environment. In support of her claim of harassment, Complainant indicated that the following events occurred:
1. Upon being transferred, Complainant was immediately assigned a full workload and she was not given down time from the appointment schedule to clear her pending claims that she accumulated while in the ALJ unit.
2. On July 1, 2010, Management changed Complainant's primary work assignments.
3. On October 27, 2010, Management issued Complainant an end-of-year FY10 Performance Assessment and Communications System (PACS) rating with an average of "3" in all four elements. Complainant believed that she received unfavorable feedback to her during her PACS discussion.
4. In December 2010, after being transferred out of the ALJ unit, the ALJ unit changed the reviewing Technical Expert (TE2) for remaining claims representatives.
The Agency noted that Complainant raised events in an untimely manner. However, the claim of harassment was accepted and that the untimely events will be investigated as part of Complainant's claim of a hostile work environment. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant appealed asserting that the Agency did not take into consideration the evidence she provided the Agency following the investigation. She asserted that she was treated differently than others. Further, since her complaint, she has received another PACS evaluation which she found to be fairer than the one raised in the instant complaint. She asked that the Commission can sift through the facts and find in her favor. The Agency requested that the Commission affirm its decision finding no discrimination.
ANALYSIS AND FINDINGS
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").
It is well-settled that harassment based on an individual's prior EEO 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, the complainant must show that: (1) she engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her prior EEO activity; (3) the harassment complained of was based on prior EEO activity; (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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
We note that Complainant has shown that she had engaged in prior EEO activity in that she complained of harassment based on her race. Further, she asserted events which were not welcomed. The Commission turns to the issue of whether the events raised occurred because of her protected EEO activity. Upon review of the record, we find that Complainant has failed to do so.
Complainant alleged four specific events which she asserted constituted harassment. As to the PACS rating, the record showed that the Operations Supervisor rated Complainant a "3" based on her performance from September 2009 through September 2010. The Operations Supervisor noted that Complainant was moved from the Internet unit to the ALJ unit because she processed the claims too slowly. She noted that Complainant was made aware of the expectations and given a mid-year review. At the mid-year, Complainant was told that she needed to improve her claims processing. The Operations Supervisor provided her with a "3" noting the need for improvement. Complainant believed that the rating was low and she was given positive feedback from the Operations Supervisor. A review of the record showed that Complainant's mid-year feedback was positive; however, it noted that Complainant needed to work on getting her cases done timely. As such, we cannot find that the rating constituted unlawful retaliation.
Complainant also indicated that in July 2010, her primary work assignments were changed and that her work was reviewed by the TE named in her prior EEO complaint. The Operations Supervisor noted that Complainant's unit was being dissolved and all within that unit were moved. Further, Complainant was reassigned to the ALJ unit. The Operations Supervisor noted that Complainant came to her with concerns about the TE. They decided that claims of more than $5,000 were to be given to the TE for review. If the TE found errors, they would be submitted to the Operations Supervisor who will decide if there was an error and would talk to Complainant. The Operations Supervisor noted that Complainant did not make any more mistakes than others and that this did not delay Complainant's work. Upon review, we find that Complainant has not shown that the actions by the Agency occurred because of her prior protected activity.
Complainant noted that in December 2010, she was transferred out of the ALJ unit, and the TE was no longer assigned to review claims in her former unit. The Operations Supervisor noted that the TE involved in Complainant's prior EEO complaint had been out on an extended leave and then on a special project. Therefore, the other TE (TE2) conducted all the reviews. We find that Complainant has not shown that the Agency's action was based on Complainant's prior EEO activity.
Finally, Complainant asserted that when she was transferred to the Initial Claims (IC) unit, she was given a full workload without downtime to clear the pending claims she accumulated while in the ALJ unit. Complainant indicated that her new supervisor (IC Unit Supervisor) assigned Complainant a full load. She still had 36 claims from the ALJ unit. Despite her requests, only four of them were transferred. She asserted that others did not have the workload that she had and others were given up to two weeks of downtime to process their pending claims. Management indicated that Complainant was provided with two full days and two additional days with only one appointment to work on her claims from the ALJ unit. It was noted that it is the Agency's policy that they take their assignments with them to the new unit and that downtime is given to the employees. Management averred that Complainant was given downtime and maintained the cases pursuant to the Agency's policy. Complainant's IC Unit Supervisor averred that Complainant only had 17 pending claims when she entered his unit. Further, by January 2011, she had only three claims pending. Therefore, he asserted that Complainant was given the downtime and in fact had four claims reassigned. Upon review, we find that Complainant has not shown that the alleged events occurred because of her protected EEO activity.
Therefore, based on our review of the record, we find that Complainant cannot establish that the alleged harassment occurred because of her protected EEO activity. Further, Complainant has not shown that the alleged events had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. As such, we conclude that Complainant has not established a prima facie case of retaliatory harassment.
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 finding no discrimination.
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
June 27, 2012
__________________
Date
2
0120121058
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121058