Beth L.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionOct 31, 20180120171177 (E.E.O.C. Oct. 31, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beth L.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120171177 Agency No. KC160329SSA DECISION On February 9, 2017, 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 January 9, 2017, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. 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 an Attorney Advisor- Decision Writer, GS-12, at the Agency’s Hearing Office, Office of Disability Adjudication and Review in Lexington, Kentucky. Prior to the instant complaint, Complainant filed an EEO complaint alleging that she was being harassed by her supervisors in Lexington (S1, S2, and S3). During the investigation into her prior complaint, the Agency reassigned Complainant to a supervisor (S4) in St. Louis, Missouri. Complainant now alleges that S4 joined in with S1, S2, and S3 to harass her. Complainant identifies several events that comprise her hostile work environment claim. 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. 0120171177 2 Complainant contends that, on February 4, 2016, S4 held an investigative interview with her, in which S4 interrogated Complainant about several issues. Complainant states that S4 “in an aggressive and condescending manner, stated several times that I needed to tell the truth and not lie in my responses to false allegations that I had engaged in misconduct.” During this interview, Complainant and S4 covered three allegations against Complainant: (a) Complainant had violated Agency policies by playing fantasy football at work; (b) Complainant had teleworked from a place other than the location designated in her telework agreement; and (c) Complainant had misused government equipment by maintaining certain files on her computer containing personally identifying information (PII) and downloading emails onto CDs in response to a request by the EEO investigator for information supporting her claim. Complainant contends that the investigative interview was a Weingarten interview, but failed to meet the appropriate notice requirements and that all the allegations were “ludicrous and so easily shown to be false that the only explanation for them to rise to the level of a Weingarten interview is reprisal.” Complainant asserts that she has never played fantasy football and doesn’t know how. She notes that she receives daily emails from the Washington Post with a summary of articles and that two of these emails included references to fantasy football articles. Complainant states that the Agency alleged that she engaged in unauthorized teleworking on November 27, 2015 and December 17 and 18, 2015. Complainant states that November 27, 2015, was the day after Thanksgiving and that she did not work on December 17 or 18, 2015, a fact which could be verified by researching her IP addresses. Complainant also denies misusing government equipment. She states that she was providing emails to the EEO investigator only after she received assurances that it was proper to do so in the context of an EEO claim. She also explains that she is required to keep documents containing PII on her computer because she needs to respond to inquiries regarding cases she previously worked. S2 explained that two Agency employees (IT1 and IT2) informed him that they observed emails regarding fantasy football on Complainant’s computers. The employees subsequently provided written statements that detailed their concerns regarding Complainant’s request for CDs. IT1 said that she was providing technical assistance to Complainant when she noticed emails on Complainant’s computers that mentioned fantasy football. In addition to informing S2 about the emails, IT1 told S2 that Complainant had requested 10-20 CDs to download certain emails. IT1 also said that other regional IT employees who were also assisting Complainant had noticed the existence of extraneous electronic files on Complainant’s computer. S2 stated that S3 informed him that she was concerned about Complainant’s use of leave. S2 forwarded these concerns to the Agency’s labor and employment relations attorney, who recommended interviewing Complainant. Initially, S1 was to have conducted the interview, but S1 explained that, because Complainant was reassigned to St. Louis under S4’s supervision and S1 was named in Complainant’s prior EEO complaint, S4 did the interview. 0120171177 3 S4 explains that she conducted the investigative interview because she was Complainant’s supervisor at the time the interview took place. The questions were prepared in advance by an employee and labor relations specialist with the Agency. S4 admits that she reminded Complainant that she had an obligation to be truthful, but denied she was aggressive or challenging. S4 states that the purpose of the interview was to collect information. There is no evidence that Complainant was subjected to discipline as a result of S4’s interview. Complainant further contends that the Agency engaged in retaliatory harassment by changing her system profile and removing her from Agency distribution lists. Specifically, in March 2018, she discovered she had not received email notification of a recent policy change after a coworker asked her about the change. She also contends that she was unable to access a training video. Complainant argues that these changes could have only been implemented by S1, S2, or S3 and concludes that they were motivated to do so out of reprisal for her prior EEO complaint. The record contains hundreds of pages of emails between Complainant and an employee within the Agency’s IT department (IT3). IT3 explained Complainant’s email difficulties. While assigned to Lexington, Complainant’s system profile contained permissions unique to the Lexington facility. When Complainant was reassigned to St. Louis, her permissions changed to reflect the reassignment. IT3 averred that these changes were not unusual. IT1 also explained that the Agency’s usual practice was to delete Complainant from the email distribution lists that went to all employees in the Lexington facility. On February 22, 2016, Complainant alleges that her office had been searched. Complainant cannot identify who searched her office and contends that it was “a broader signal to me that I was vulnerable and that my personal space could be invaded and there was little I could do about it.” She believes that S1, S2, and S3 were the only individuals in her office with the motivation to search her office, but Complainant provided no evidence to identify who, if anyone, searched her office. S2 disclaims any knowledge about Complainant’s office being searched. Complainant also requested, among other things, to telework exclusively for 90 days as a reasonable accommodation on March 1, 2016. Complainant contends that S4 instructed her to provide more detailed medical documentation in support of her request. Complainant says she objected to the release of her physician’s treatment notes and asked S4 if there was any alternative. S4 said she would get back to her; however, Complainant claims that she no longer needed accommodation by the time S4 responded, and withdrew her request. Complainant believes S4’s lack of action is part of her hostile work environment claim. S4 explained that the information Complainant provided was insufficient and that she provided a set of questions in an April 5, 2016 email to Complainant in order to get more complete information. Complainant did not respond to that email, but instead withdrew her request. The record contains a copy of the email, dated April 5, 2016, from S4 to Complainant seeking further information so that S4 could assess Complainant’s request for reasonable accommodation. Complainant responded to S4’s email stating that she would endeavor to get documentation to S4 as soon as possible. 0120171177 4 S4 also provided a memo that she issued to Complainant memorializing their communications. In that memo, S4 notes that after Complainant’s March 1, 2016, request, Complainant submitted medical documentation on March 17, 2016, which prompted S4’s April 5, 2016, email. Although Complainant was re-assigned to St. Louis during the pendency of the investigation into her prior EEO complaint, on June 17, 2016, the Agency returned her back to Lexington. At this time, Complainant had a different supervisor, S5, but alleges that she was still forced to interact with S1, S2, and S3. On April 29, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her in reprisal for prior protected EEO activity when: 1. On February 4, 2016, management informed her that she was being investigated for misusing government equipment, violating the telework agreement, and misusing Agency documents; and 2. The Agency subjected Complainant to harassment beginning on February 4, 2016 in terms of working conditions, misconduct, and systems access. 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 Agency dismissed Claim 1 for failure to state a claim because the record demonstrated that Complainant was merely subjected to an investigative interview and not issued any discipline. Therefore, Complainant did not suffer an adverse action. The Agency did, however, include the facts arising out of Claim 1 in its analysis of Claim 2. The Agency concluded that Complainant did not demonstrate she was subjected to harassment as alleged in Claim 2. Specifically, the Agency found that Complainant failed to demonstrate that the unwelcome actions she suffered were connected to any basis protected by EEO statutes. The instant appeal followed. CONTENTIONS ON APPEAL Complainant requests that this complaint be combined with her previous EEO complaint because both complaints involve the same people and the same type of conduct. Complainant asks that this complaint be assigned to an Administrative Judge. The Agency did not submit a statement on appeal. 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). 0120171177 5 See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). At the outset, the Commission notes that the Agency improperly framed Complainant’s allegations. A plain reading of the complaint demonstrates that Complainant is not only alleging that she was subjected to harassment in retaliation for prior EEO activity, but that she is also alleging the Agency failed to provide her with reasonable accommodations. However, a fair reading of the record demonstrates that the investigation has gathered sufficient evidence to allow the Commission to make a determination on a failure to accommodate claim. Further, on appeal, Complainant requests for the first time that the instant complaint be consolidated with her previous EEO complaint. The Commission sees no evidence that Complainant made this request at any time during the processing of her complaint. Moreover, Complainant did not timely request a hearing – only doing so at the time she appealed the Agency’s final decision, well beyond the 30 days contemplated by 29 C.F.R. § 1614.108(f). Claim 1 The Agency improperly dismissed Claim 1. Although Complainant’s allegation does not demonstrate the Agency subjected her to an adverse action, the Agency ignores that an adverse action is not required to sustain a claim of reprisal. A complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, “Retaliation,” No. 915.003 (May 20, 1998), at 8-15; see also Carroll v. Dep’t of the Army, EEOC Appeal No. 05970939 (Apr. 4, 2000). Subjecting a complainant to an unnecessarily harsh interview may be sufficient to state a claim. Notwithstanding the Agency’s improper dismissal of Claim 1, after a comprehensive review of the record and Complainant’s statement on appeal, the Commission concludes that Complainant failed to demonstrate she was retaliated against as alleged. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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 Construction 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 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 0120171177 6 Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). In this case, Complainant fails to demonstrate a nexus between her protected activity and the investigative interview. Regardless of whether the interview was properly labeled a Weingarten interview, to succeed on her claim, Complainant still needed to show that she was subjected to the interview because of her prior EEO activity. She did not. Further, the Agency provided documentation from various information technology personnel that demonstrated a concern, independent of any EEO activity, that Complainant may have violated Agency policy. Thus, for these reasons, the Agency believed it was necessary to interview Complainant. Complainant provides no evidence to rebut these concerns. Claim 2 To establish a claim of 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 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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 0120171177 7 The Commission agrees that Complainant has failed to demonstrate she was subjected to a hostile work environment as alleged. Even assuming that the alleged conduct was sufficiently severe or pervasive enough to establish a hostile work environment, the Commission finds that Complainant has failed to show that the Agency’s actions were based on retaliatory animus. For example, Complainant was subjected to an investigative interview based on information her supervisors received from the Agency’s information technology employees and the Agency did not subject Complainant to any disciplinary action as a result of the information she provided during the interview. Complainant also could not rebut the Agency’s explanation that she was deleted from Lexington listservs as a result of her reassignment to St. Louis, and that this was routine standard operating procedure. The Commission concludes that, based on the totality of the circumstances, Complainant has not shown that she was subjected to a retaliatory hostile work environment. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not demonstrated that the Agency’s explanation for its actions was pretext for reprisal. As a result, the Commission finds that Complainant was not subjected to reprisal or a hostile work environment as alleged. Denial of Reasonable Accommodation To the extent that Complainant alleges that she was denied reasonable accommodation, the Commission notes that an Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. To establish a denial of reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. The Commission will assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. Complainant alleges that the Agency failed to engage in the interactive process. However, a comprehensive review of the record reveals that S4 engaged in the interactive process following Complainant’s initial request. S4 requested additional medical documentation in support of Complainant’s request, and then followed up when Complainant had not provided the documentation requested. On June 8, 2016, after failing to submit the requested documentation, Complainant then withdrew her request. Consequently, we find that Complainant has not established that the Agency failed to engage in the interactive process or denied her reasonable accommodation in violation of the Rehabilitation Act. 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. 0120171177 8 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). 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. 0120171177 9 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 October 31, 2018 Date Copy with citationCopy as parenthetical citation