Cami C.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 21, 2019

0120181952 (E.E.O.C. Aug. 21, 2019)

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

Cami C.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120181952

Hearing No. 560-2016-00218X

Agency No. DAL-15-0585-SSA

DECISION

On May 17, 2018, 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
April 17, 2018, final order 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. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

ISSUE PRESENTED

The issue presented is whether the Agency subjected Complainant to discriminatory harassment
with regard to working conditions, including the use of profanity in the workplace and the lack of
opportunity and training.

BACKGROUND

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.
0120181952

2
At the time of events giving rise to this complaint, Complainant worked as a Technical Expert,
GS-105-12, at the Agency’s field office in McAlester, Oklahoma.

On June 22, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to
discriminatory harassment (nonsexual) on the bases of sex (female), age (over 40), and in reprisal
for prior protected EEO activity arising under Title VII and the ADEA on December 4, 2014, and
on March 17, 2015, and ongoing, with regard to working conditions, including the use of profanity
in the workplace and the lack of opportunity and training. Regarding the alleged lack of
opportunity and training, Complainant identified the following events:

1. Cancellation of training schedule for May 21, 2015;
2. Complainant did not get to hand out an appointment sheet as Officer in Charge on
March 25, 2015;
3. On April 15, 2015, the District Manager wanted Complainant to do walk-ins or answer
phones for the office;
4. On May 12, 2015, a male coworker was allowed to take a personal phone call;
5. On May 26, 2015, Complainant was emailed work assignments;
6. On May 29, 2015, the District Manager asked Complainant questions about the
appointment calendar;
7. On July 21, 2015, when Complainant gave the District Manager a leave slip, the District
Manager told Complainant that she could switch phone days with a coworker;
8. On October 13, 2015, when the District Manager announced that she was retiring, the
District Manager asked Complainant if she [Complainant] was retiring;
9. On October 27, 2015, the Assistant District Manager requested Complainant send him
an email with the dates of her husband’s medical appointments; and
10. On November 3, 2015, the Assistant District Manager walked into a conference room
where Complainant was being interviewed by the EEO investigator and retrieved his
computer. The Assistant District Manager failed to say “excuse me” and “glared” at
Complainant.

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). Complainant timely requested a hearing. When Complainant did not object, the AJ assigned
to the case granted the Agency’s March 30, 2017, motion for a decision without a hearing and
issued a decision without a hearing on April 16, 2018. The Agency subsequently issued a final
order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

0120181952

3
CONTENTIONS ON APPEAL

On appeal, Complainant contends that while each alleged incident taken alone may not rise to the
level of prohibited discrimination, taken together they show a pattern of prohibited harassment and
reprisal.

The Agency did not submit a brief in response to Complainant’s appeal.

ANALYSIS AND FINDINGS

We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S.
317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material”
fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, the Agency argued in its
motion for a decision without a hearing that Complainant failed to prove her harassment claim
because the alleged incidents at issue were not sufficiently severe or pervasive to create a hostile
work environment. The Agency also argued that none of the alleged incidents were causally linked
to Complainant’s protected characteristics or participation in prior protected EEO activity.
Complainant did not oppose the Agency’s motion. Ultimately, the AJ determined that there were
no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance
of a decision without a hearing was appropriate.

On appeal, Complainant reiterates her contention that the Agency subjected her to ongoing
harassment, citing numerous alleged incidents in support of her claim. A harassment claim is
examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). Under this standard, 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
0120181952

4
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.

We initially address Complainant’s contention regarding the use of profanity in the workplace,
which she alleges was pervasive in nature. In this regard, Complainant alleged that on December
4, 2014, a female coworker overhead a male colleague declare that he was “tired of this fucking
shit” in reference to his coworkers who were all female (excluding management). Complainant
also alleged that on March 17, 2015, she overheard the same male colleague say to the Assistant
District Manager, “I am sick and tired of this shit, when are you going to tell the [District Manager]
to grow a set of balls and start control[ling] the fucking women in this office?” For the purposes
of our analysis, we will assume that the alleged incidents occurred in the manner described by
Complainant. We note, however, that the Commission does not generally consider a single incident
or group of isolated incidents to be discriminatory harassment unless the conduct is severe. Upon
review, we find that the alleged incidents of profanity, even if considered collectively and
alongside the alleged lack of opportunity and training, while offensive to Complainant, are
insufficiently severe or pervasive to constitute actionable harassment.

As for the alleged lack of opportunity and training, we find that Complainant cannot prevail on her
allegations of harassment, as the record clearly shows that management had legitimate,
nondiscriminatory reasons for these incidents.

For claim 1, Complainant averred that management sought volunteers to give offsite training on
May 21, 2015. Complainant indicated that she volunteered to conduct the training, but
management subsequently canceled the training. In response, management explained that the
scheduled training was canceled because the requesting party canceled the training request.

Regarding claim 2, Complainant averred that she was Officer in Charge (OIC) on March 25, 2015,
but the Assistant District Manager did not contact her regarding the appointment sheet and instead
contacted her male colleague. The Assistant District Manager, in response, explained that
Complainant had previously advised him that due to her husband’s cancer, she would only be at
work on Tuesdays, and since March 25, 2015, was a Monday,2 he contacted Complainant’s
colleague who was next in line as OIC.

As for claim 3, Complainant alleged that the District Manager singled her out for walk-in-and
phone duty, which no one else was required to perform on a daily basis. The District Manager,
however, did not recall the incident and indicated that Complainant was never assigned to only
perform walk-in or phone duty every single day. The District Manager explained that due to
Complainant’s sporadic attendance during that time, Complainant was taken out of the
appointment, walk-in, and phone rotation.

2 Our review of the calendar shows that March 25, 2015, fell on a Wednesday.
0120181952

5
For claim 4, Complainant alleged that while the District Manager previously told her that she could
only make personal telephone calls when on break, she observed her male colleague make a four-
minute personal telephone call after he had taken his break. The District Manager, however, had
no recollection of the incident and noted that she and the Assistant District Manager were generally
liberal about personal telephone calls unless the privilege was abused. The Assistant District
Manager also did not recall the incident and similarly noted that employees can make personal
telephone calls while on duty. The Union President, on the other hand, indicated that when
Complainant would make personal telephone calls while on duty, the District Manager and
Assistant District Manager would single Complainant out and tell Complainant not to make
personal telephone calls on duty. The Union President attributed the disparate treatment to
Complainant’s prior EEO activity.

As for claim 5, Complainant alleged that on May 26, 2015, the District Manager sent her an email
detailing her work assignments, to include assigning duties as if she was going to be in the office
100 percent of the time. Complainant also alleged that the District Manager’s email requested that
she reply before the end of the day, even though she had already left the office for her husband’s
chemotherapy appointment. The District Manager, in response, indicated that on May 26, 2015,
she placed Complainant back on the rotation because Complainant was coming to work on a
regular basis. The District Manager explained that she sent out the work schedule to everyone in
the office and asked for everyone’s input in case changes needed to be made. The District Manager
asserted that she was not aware Complainant had left for the day and that Complainant was not
treated differently than anyone else.

Regarding claim 6, Complainant averred that on May 29, 2015, she told the District Manager that
she did not complete the appointment calendar because she was unaware that the District Manager
wanted her to do it. Complainant alleged that the District Manager hatefully replied that she was
not “anal” about things like this and did not care if Complainant did the calendar because this was
not one of the things she was “anal” about. The District Manager, however, denied using the word
“anal” and indicated that she would normally complete the calendar unless she was not there or if
she was late for work.

With regard to claim 7, Complainant alleged that when she turned in a leave slip on July 21, 2015,
the District Manager told her that she could switch telephone days with a female colleague.
Complainant asserted that when her male colleague requested leave, the Assistant District Manager
covered for him. In response, the Assistant District Manager explained that coverage must be
arranged if an employee wants to take leave when he or she is scheduled for telephone duty. The
Assistant District Manager indicated that he was unable to cover for Complainant on July 21, 2015,
because he was on scheduled annual leave.

As for claim 8, Complainant alleged that during a staff meeting on October 13, 2015, the Assistant
District Manager announced that the District Manager was retiring on December 3, 2015, and after
the announcement, the District Manager looked at her and very loudly said, “Aren’t you retiring?”
0120181952

6
The District Manager, however, denied asking Complainant if she was retiring and simply stated
that Complainant and another employee were retirement eligible after other employees started
talking about their own retirement.

For claim 9, Complainant alleged that the Assistant District Manager directed her to send him an
email listing her husband’s medical appointments, which other employees were not required to do.
The Assistant District Manager explained that for the past year Complainant had a sporadic
schedule due to her husband’s medical condition, and management had been unable to assign her
specific work and appointments due to her sporadic schedule. The Assistant Manager indicated
that for this reason, he asked Complainant to send him an email indicating when her husband had
medical appointments, so he could preplan her work assignments. The Assistant District Manager
emphasized that management has been very liberal with Complainant’s use of leave because they
understood what she was going through.

Regarding claim 10, Complainant alleged that on November 3, 2015, management was notified of
her upcoming EEO investigative interview at approximately 08:30 a.m. Complainant indicated
that around 11:20 a.m., the Assistant District Manager opened the door to the private interview
room while Complainant was on the telephone with the EEO investigator, looked/glared at her,
and proceeded to retrieve a laptop that was on the desk in the room. Complainant asserted that the
Assistant District Manager did not knock before entering the room and did not say “excuse me.”
The Assistant District Manager, however, averred that he was not aware that Complainant was
participating in an EEO interview. The Assistant District Manager indicated that when he saw
Complainant in the room, he apologized to her, and stated he needed to retrieve his laptop and
immediately left the room.

After careful consideration of the record, we find that Complainant failed to show that the alleged
incidents, even if true, were sufficiently severe or pervasive to alter the terms of her employment.
To the contrary, we find that the alleged incidents of harassment can generally be described as
relating to communication issues between Complainant and management and/or disagreements
with managerial decisions regarding leave, time and attendance, and scheduling. To the extent
Complainant contends that management acted unprofessionally towards her, we note that anti-
discrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively
offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore
Serv., Inc., 523 U.S. 75, 81 (1998). While we acknowledge that Complainant had a rather tense
relationship with management, we find that the preponderant evidence fails to establish any
actionable harassment/hostile work environment. Furthermore, we find no persuasive evidence
that management’s actions were reasonably likely to deter an individual from pursuing his or her
EEO rights. For these reasons, we conclude that Complainant failed to prove her allegations of
discrimination by the preponderance of the evidence.

0120181952

7
CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision implementing
the AJ’s decision finding no discrimination because the preponderant evidence fails to show that
Complainant was subjected to discrimination as alleged.

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.
0120181952

8
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

August 21, 2019
Date