Allen S.,1 Complainant,v.Linda McMahon, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Sep 14, 2018

0120160102 (E.E.O.C. Sep. 14, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Allen S.,1
Complainant,

v.

Linda McMahon,
Administrator,
Small Business Administration,
Agency.

Appeal No. 0120160102

Hearing No. 490-2013-00106X

Agency No. 01-12-031

DECISION

On October 6, 2015, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 8, 2015, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as
amended (Title VII), 42 U.S.C. § 2000e et seq. Our review is de novo. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Loan Specialist, GS-
12, at the Agency’s Commercial Loan Servicing Center in Little Rock, Arkansas.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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On March 3, 2012, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him and harassed him on the basis of reprisal for his prior protected EEO
activity under Title VII when: 2

1. On January 26, 2012, Complainant received a first quarter review for October 1, 2011
through December 31, 2011, based on incorrect information;

2. On April 16, 2012, management assigned Complainant additional responsibilities as
part of his performance standards;

3. On June 24, 2012, Complainant received a 3rd quarter review evaluation that did not
give him credit for processing quality control reviews while another employee received
the credit;

4. From August 29, 2012 – September 4, 2012, management has tried to get Complainant
to approve service work outside the work guidelines and Statement of Procedure, which
adversely impacts his work response time;

5. On September 20, 2012, the Center Director and Deputy Center Director denied
Complainant’s request for an office so that he could perform his union duties as a union
president, in a confidential location, which is afforded to other union presidents in the
Agency; and

6. On September 25, 2012, the Servicing Supervisory Loan Specialist did not allow
Complainant to come into the office to mail documents and denied his representational
time request to perform union duties.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing but subsequently withdrew his request.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. The Agency noted that Complainant stated that he filed three prior EEO complaints,
including one in 2011 where he complained about his then-Supervisor and the Deputy Center
Director (DCD) for telling sexually explicit jokes during a July 2011 presentation.

2 Complainant amended his complaint several times after the original filing and the following
claims reflect the entire accepted complaint. Complainant also complained about his performance
appraisal, disciplinary actions, working conditions and bullying, which allegedly occurred in
November 2011 and January 2012. In dismissing these claims pursuant to 29 C.F.R.
§ 1614.107(a)(1), the Agency determined that these claims were included as part of Complainant’s
prior complaint, and therefore stated the same claims as those raised in the prior complaint.
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With regard to claim (1), Complainant argued that his former supervisor and the DCD did not give
him credit or credit hours for time spent responding to lender inquiries about general loan
processing that were not specific to a particular loan. Complainant further claimed that the DCD
modified the production reports. According to Complainant, his production numbers also did not
reflect all of the occasions in which his computer locked and he was unable to draw down actions
to process. Complainant asserted that the DCD was sabotaging his production numbers by having
his computer locked.

The Agency noted that the Center Director (CD) stated that loan officers are required to process a
specific number of actions each month under their standards, but that adjustments to those numbers
are made whenever a loan officer is on leave. The Agency stated that the DCD acknowledged
preparing Complainant’s first quarter review, which was a progress review based on information
captured by the electronic system on the number of servicing actions completed, and which
accounted for Complainant’s leave during the review period. As for Complainant’s computer
being locked, the Agency stated that both the CD and the DCD asserted that there may be delays
associated with working remotely and internet connection. They also claimed that it is impossible
for Complainant’s production counts to be altered.

With respect to claim (2), Complainant stated that the DCD added Quality Assurance Reviews
(QAR) duties to his job, and that when he protested, his performance standards were changed to
reflect the QARs. The Agency noted that Complainant stated he began performing QARs in June
2012, and that other employees started doing them in July 2012, on a rotating schedule.
Complainant claimed that he did 236 QARs in June 2102, which took a substantial amount of time.
The Agency stated that Complainant claimed that the addition of the QAR duties adversely
affected his ability to meet his performance measures.

The Agency stated that the CD, DCD, and the Supervisor asserted that all loan officers are required
to perform QARs as part of their regular duties. According to each of these management officials,
the loan officers were initially placed on a monthly rotation to do QARs, but now they are all
required to perform 37 QARs each month. The DCD stated that the policy requiring all loan
officers to perform QARs was issued by Headquarters. The DCD also stated that each QAR counts
as a servicing action for the loan officers’ production counts. According to the CD and the DCD,
the Quality Control Specialist is the second-line reviewer with oversight responsibility for QARs
and is not supposed to be the first-line reviewer.

As for claim (3), Complainant stated that the QAR duties he was performing should have been
done instead by the Quality Control Specialist, who was selected several months before he was
assigned QAR tasks. Complainant further claimed that he did not receive credit for performing
the 236 QARs, but the Quality Control Specialist did receive credit for doing them. Complainant
asserted that management was seeking to demonstrate to the investigator of his prior complaint
that he was not meeting his performance standards.

The Agency noted that Complainant’s Supervisor stated that she issued Complainant his third
quarter review.
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The Supervisor maintained that Complainant was only expected to perform QARs in June 2012.
According to the Supervisor, the QARs did not appear on Complainant’s production count, but he
received credit on his evaluation for the QARs he performed. The Supervisor asserted that she is
not aware of whether the Quality Control Specialist received credit for the QARs that Complainant
performed in June 2012, but confirmed that the Quality Control Specialist is a second-line reviewer
of QARs.

With respect to claim (4), Complainant stated that he informed his Supervisor that he was rejecting
a lender’s request to reinstate a guarantee on a loan due to lender error, and that the Supervisor
responded by recommending he approve the reinstatement. Complainant claimed that he told his
Supervisor he disagreed with her recommendation because it was an Agency error, and that he
requested she adhere to the protocol of having a second-level review by the DCD or the CD, or by
another loan officer reviewing the matter, but she refused and issued him a deadline to approve
the action. According to Complainant, each time the Supervisor returns an action such as this, it
adversely affects his response time, which negatively affects his production.

The Supervisor asserted that with regard to the matter at issue, Complainant did not process the
loan properly, and she asked him to redo the request for a loan reinstatement and revise his
comments. The Supervisor further asserted that she does not force any loan officer to do something
they do not want to do, and she follows policy and guidelines. According to the Supervisor,
Complainant revised his loan comments, but Complainant stated that the decision was reversed
based on her remarks, which she asserted was unacceptable. The Supervisor stated a loan officer
is supposed to make comments based on their own review and recommendation.

In terms of claim (5), the Agency noted that Complainant asserted he is the only Agency union
president without a private office in which to meet with bargaining unit employees. Complainant
stated that he is the only union president at his worksite, but that others around the country have
private spaces. According to Complainant, management frequently walks in or around the area in
which he is counseling an employee, and this has an intimidating effect on employees.
Complainant identified a storage room that could be utilized, but a Human Resources official
informed him that it could not be used because it was going to be converted into an interview
room. Complainant stated that the Human Resources official offered him a shared space, but
Complainant maintained that it is not a confidential area as management walks in. The Agency
noted that Complainant pointed out that offices could be used that are assigned to people who
come into the office once or twice a month. The Agency stated that the CD asserted that on
September 20, 2012, Complainant was informed he could use a private shared space for union
activities. According to the CD, the shared room is called the interview room, but that it is not
used for interviews.

With regard to claim (6), Complainant asserted that on May 2, 2012, the Supervisor distributed a
policy that said if an employee on telework comes into the office, they may not leave until their
tour of duty is over.

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According to Complainant, on September 25, 2012, he informed his Supervisor that he wished to
come into the office that day for official union time to conduct a conference call for one hour in
the afternoon, and to mail documents to lenders, but she responded that he was not permitted to
come in because it was his telework day. Complainant stated that the policy was not approved by
the union.

The Supervisor maintained that Complainant was permitted to go into the office on September 25,
2012, and was allotted time to perform union-related activities. The Supervisor acknowledged
that loan officers are required to secure permission to come into the office to mail work-related
documents on their telework days, and that once an employee is in the office, they are not permitted
to return home until their tour of duty is completed. The Supervisor stated that on the date in
question, Complainant informed her that he was coming into the office and she responded that it
was okay this time, but in the future it was not acceptable. According to the Supervisor, the reason
for this policy is because employees are not allowed to have a work schedule where they can
choose if they are going to work from home or the office. The Supervisor asserted that another
factor pertains to workers’ compensation issues. The Supervisor explained that Complainant
received approved representational time any time he requested it.

The Agency determined that Complainant failed to prove that the Agency’s legitimate
nondiscriminatory reasons for its actions were pretext for discrimination. The Agency stated that
Complainant’s assertions that events occurred the way he says they did are contradicted by the
testimony of the CD, the DCD, and his Supervisor. The Agency further determined that
Complainant offered no evidence of statements demonstrating retaliatory animus toward or about
him. The Agency noted that Complainant also suggested a factor in the Agency’s actions was his
work as a union president. The Agency noted that this motivation is not prohibited by Title VII.
As to Complainant’s harassment claim, the Agency found that Complainant failed to establish that
the conduct was sufficiently severe or pervasive to create an unlawful hostile work environment.
The Agency reasoned that severity was not present in light of there being no physically threatening
acts or physical contact, and no discriminatorily demeaning comments or terms. The Agency also
determined that pervasiveness did not exist given that the claims amounted to six incidents over a
nine-month period.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the harassing incidents and conduct are not isolated
incidents, but rather were repeated and continuous throughout the time after he filed his prior
complaints. Complainant also raises a claim of race (African-American) discrimination as to claim
(1). With regard to claim (1), Complainant maintains that he processed work that he was not given
credit for and that other people were given credit for his work. Complainant states that his situation
improved with the arrival of a new Supervisor and his report of computer lockups to the
Headquarters help desk rather than locals. As for claim (2), Complainant maintains that QARs are
not part of his original performance standards. Complainant argues that the Quality Control
Specialist was hired to process QARs, but he was doing them and not receiving credit.
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With regard to claim (3), Complainant contends that the job announcement advertising the position
secured by the Quality Control Specialist did not say anything about supervision or second-level
reviews. Complainant states that he should not have to do the QARs.

With respect to claim (4), Complainant maintains that the changes his Supervisor wanted were not
based on Agency error, but rather lender error. Complainant contends that it was management
harassment to attempt to force him to recommend an action and that the back and forth with his
Supervisor impacted his production. As for claim (5), Complainant maintains that all other union
presidents have a private office. Complainant argues that there are plenty of spaces that could be
used for interviews and that management wants to create an environment of harassment and
intimidation. In terms of claim (6), Complainant asserts that the CD created a unilateral policy
that required employees to come to the office and mail their own documents as no one else in the
office can do their mailing. Complainant states that the policy requiring a telework employee to
stay in the office the remainder of the work day if he comes into the office was not approved by
the union.

In response, the Agency asserts that Complainant is untimely in raising his claim of race
discrimination. The Agency points out that Complainant checked the box for reprisal and not race
on his complaint form and he also amended the instant complaint on multiple occasions. The
Agency argues that Complainant is knowledgeable of the EEO process considering he has been
involved in numerous prior complaints. The Agency further maintains that Complainant cannot
raise the race claim for the first time on appeal as to allow it would thwart the investigative process.
The Agency notes that during the investigation Complainant specifically stated that this complaint
is not based on race. The Agency argues that Complainant failed to establish that reprisal occurred.
The Agency states that the alleged actions lacked retaliatory animus and the temporal proximity
between the actions and Complainant’s EEO activity do not support an inference of causation.
The Agency notes that Complainant’s most recent prior EEO activity occurred in July 2011, but
the events at issue did not occur until several months later.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802
n. 13. To establish a prima facie case of reprisal, Complainant must show that: (1) he engaged in
protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he
was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected
activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No.
01A00340 (Sept. 25, 2000).

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The prima facie inquiry may be dispensed with where, as here, the Agency articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Complainant claims that he was subjected to harassment by management officials. To establish
this claim, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a working environment is hostile,
factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it
is physically threatening or humiliating, and if it unreasonably interferes with an employee’s work
performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Initially, we observe that Complainant claims on appeal that a claim of race discrimination should
be included in claim (1). Although we note that Complainant did not initially allege race as a basis
in his complaint, the Commission has held that a complainant may allege discrimination on all
applicable bases and may amend his or her complaint at any time to add or delete bases without
changing the identity of the claim. Drago v. U.S. Postal Serv., EEOC Request No. 05940563 (Jan.
19, 1995); accord, Sanchez v. Standard Brands, Inc., 431 F. 2d 455 (5th Cir. 1970). We also note
that although this basis was not part of the investigation, the investigative record is adequately
developed such that a determination can be made on Complainant’s claim.

With regard to each of the claims at issue, we shall assume arguendo that Complainant has set
forth a prima facie case of reprisal. We find that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. As for claim (1), the Agency explained that loan officers
are required to process a specific number of actions each month under their standards, but that
adjustments to those numbers are made whenever a loan officer is on leave. The Agency stated
that the DCD acknowledged preparing Complainant’s first quarter review, which was a progress
review based on information captured by the electronic system on the number of servicing actions
completed, and which accounted for Complainant’s leave during the review period. The DCD
asserted that Complainant’s return percentage was higher in the first quarter of Fiscal Year 2012
than most of the other loan officers. The DCD stated that since the computer system tracks each
action performed by each loan specialist, it would be impossible for other employees to get credit
for Complainant’s servicing action or for Complainant’s production reports to be altered. As for
Complainant’s computer being locked, the Agency stated that both the CD and the DCD asserted
that there may be delays associated with working remotely and internet connection.
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The Agency notes that Complainant acknowledged that his computer lacked convergent software
and that once he began contacting the help desk, the lock up issue was resolved.

With respect to claim (2), the DCD stated that Complainant completed QARs in June 2012 per the
rotation schedule and the Supervisor stated that was Complainant’s only responsibility during that
month. The CD, DCD and the Supervisor all stated that the loan officers were initially placed on
a monthly rotation to do QARs, but now they are all required to perform 37 QARs each month.
The DCD stated that the policy requiring all loan officers to perform QARs was issued by
Headquarters in August 2012. The DCD also stated that each QAR counts as a servicing action
for the loan officers’ production counts. With regard to Complainant’s argument that the Quality
Control Specialist was receiving credit for his work, the CD explained that the Quality Control
Specialist’s duties include conducting second-level reviews of all first-level QARs completed by
the loan specialists. In terms of claim (3), the Supervisor stated that the QARs did not appear on
Complainant’s production count, but he received credit on his evaluation for the QARs he
performed.

In terms of claim (4), the Supervisor stated that Complainant did not process the loan reinstatement
request properly, and she asked him to redo the request and revise his comments. The Supervisor
further asserted that she does not force any loan officer to do something they do not want to do,
and she follows policy and guidelines. According to the Supervisor, Complainant revised his loan
comments, but Complainant stated that the decision was reversed based on her remarks, which she
asserted was unacceptable. The Supervisor stated that a loan officer is supposed to make
comments based on their own review and recommendation.

With respect to claim (5), the Agency states that Complainant was notified that he could reserve
and use for union activities one of the shared spaces in the office. As for claim (6), the Supervisor
maintained that Complainant was permitted to go into the office on September 25, 2012, and was
allotted time to perform union-related activities. The Supervisor acknowledged that loan officers
are required to secure permission to come into the office to mail work-related documents on their
telework days, and that once an employee is in the office, they are not permitted to return home
until their tour of duty is completed. The Supervisor stated that on the date in question, she said it
was ok for Complainant to come in to the office this time, but in the future it was not acceptable.
According to the Supervisor, the reason for this policy is because employees are not allowed to
have a work schedule where they can choose if they are going to work from home or the office.
The Supervisor asserted that another factor pertains to workers’ compensation issues. The
Supervisor explained that Complainant received approved representational time any time he
requested it.

We find that Complainant has not shown the Agency’s reasons to be pretext for discrimination,
either based on race or reprisal. We further find with respect to Complainant’s hostile work
environment claim that the alleged actions, whether considered individually or cumulatively, were
not sufficiently severe or pervasive so as to constitute harassment. Further, as already mentioned,
we discern no evidence of retaliatory intent based on Complainant’s prior EEO activity with regard
to any of these incidents.
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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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).

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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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 14, 2018
Date