0120152039
12-05-2017
Chelsie L.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chelsie L.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120152039
Hearing No. 560-2014-00114X
Agency No. DAL130084SSA
DECISION
On May 27, 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 April 24, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Technical Expert at the Agency's McAlester Field Office facility in McAlester, Oklahoma.
On January 17, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (60), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when:
1. On October 23, 2012, Complainant's managers, (S1: female, age 60, & S2: male, age 47) ignored Complainant's written and verbal proposals for how they should divide Complainant's workload between Complainant and a new co-worker (CW: male, age unspecified) and divided Complainant's workload between Complainant and CW in an unfair manner;
2. Beginning in October 2012, S1&2 ignored Complainant's input and did not assist Complainant when she needed help handling her workload, but assisted other employees with their work;
3. On October 23, 2012, S1&2 denied Complainant's request to change her work unit from the Title II Unit to the Post Entitlement Unit;
4. On October 23, 2012, S1&2 denied Complainant the opportunity to serve as a mentor;
5. On multiple dates between October 29, 2012, and April 2, 2013, managers in Complainant's Representative's office denied Complainant's Representative's requests for official time to work on processing Complainant's EEO Complaint; and
6. Complainant was not reimbursed for travel expenses she incurred when the court reporter firm required her to travel to the court reporter's office to review the deposition taken by the Agency during the pendency of this case.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on April 1, 2015. Specifically, the AJ found that the Agency articulated legitimate nondiscriminatory reasons for its actions and that Complainant failed to establish that such reasons were pretextual. With regard to the denial of official time, the Agency found that it had not denied Complainant's requests for official time, it had merely suggested different dates than those requested by Complainant. With regard to Complainant's request for reimbursement for travel expenses, the Agency found that it was under no obligation to pay Complainant's costs unless she won her claim. 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.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Disparate Treatment Claims
With regard to claims 1 through 4, the AJ found that the Agency articulated legitimate nondiscriminatory reasons for its actions. With regard to claim 1, S1 averred that "Complainant presented a listing of items showing how she wanted the workload divided. Consideration was given to the listing Complainant gave us in the meeting; however, none of her suggestions were adopted because it was not feasible considering the available staff and our mission." Report of Investigation (ROI), Exhibit 8, p. 3. S2 averred that CW:
[H]ad just been promoted and we removed some of her duties and assigned them to her [sic]. [Complainant] gave us a listing of suggestions which she felt would be fair and equitable. What I saw in her recommendation was she was trying to create a unit for Technical Experts which we do not have the capability of doing. Two people retired. [CW] and Complainant have different responsibilities. We just do not have enough people to operate the manner in which she suggested.
ROI, Exhibit 9, p. 2.
With regard to claim 2, both S1&2 averred that Complainant never asked them for help but said that they would have provided help had she asked for it. See Exhibits 8 & 9. With regard to claim 3, both S1&2 averred that complying with Complainant's request would have meant hiring a replacement for Complainant's current position, which they were not authorized to do. See id. With regard to claim 4, both S1&2 averred that they had no recollection of Complainant asking to mentor anyone during the applicable time period and that during that period there were no employees needing mentoring. See id. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's reasons were not its true reasons, but were pretexts for discrimination. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973).
Following a review of the record we agree with the AJ that Complainant has failed to meet this burden. While Complainant disagreed with S1&2's reasoning, see ROI, Exhibit 07-02, she has not shown, by a preponderance of the evidence, that their articulated reasons for their actions were a pretext to mask discrimination. Nor has Complainant shown that either S1 or S2 harbored any animus towards her protected bases. We therefore discern no basis to disturb the AJ's findings in this regard.
Complainant argues on appeal that the AJ erred in not considering Complainant's claims under a harassment theory. We find, however, that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
Denial of Official Time and Reimbursement for Travel Expenses.
EEOC Regulation 29 C.F.R. � 1614.605(b) states, in relevant part, "If the complainant is an employee of the agency, he or she shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information. If the complainant is an employee of the agency and he designates another employee of the agency as his or her representative, the representative shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and respond to agency and EEOC requests for information."
The Commission considers it reasonable for agencies to expect their employees to spend most of their time doing the work for which they are employed. Equal Employment Opportunity Commission Management Directive 110 (MD-110), Chap. 6 � VII.C. Therefore, an agency may restrict the overall hours of official time afforded. Id. The Commission has stated that a claim regarding the denial of official time concerns a violation of the Commission's regulation and does not require a determination of whether the denial was motivated by discrimination. In Edwards v. United States Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996), the Commission held that such a claim should not be processed in accordance with 29 C.F.R. 1614.108 et seq., since the focus is not on the motivation, but rather on the justification of why the complainant was denied a reasonable amount of official time. Edwards, supra.
The AJ found that Complainant's representative had been assigned Agency duties to perform on the dates the representative originally requested for official time but that since the Agency Official (S3) offered reasonable alternative dates, there was no denial of official time. Complainant argues that the alternative dates were not reasonable and that S3 deliberately gave Complainant's representative alternative dates that she knew conflicted with his other duties as a Union Representative. Complainant has submitted an email exchange from around December 7-10, 2012, wherein the Representative asks for Official Time on specific dates, S3 provides alternate dates, and Complainant's Representative responds that S3 knew that the Representative was performing other Union activities on those alternate dates. The AJ did not address this specific issue in her decision and on appeal, the Agency does not address this aspect of Complainant's claim. The record is devoid of additional evidence on this matter showing whether or not the Representative was able to reschedule his other Union duties or whether S3 offered new alternate dates after learning the initial alternate dates were unsuitable. We therefore find that additional development of this issue is required.
With regard to reimbursement for travel expenses, the record shows that the Court Reporter Service, not the Agency, required Complainant to travel to their offices to obtain a copy of the transcripts of the proceedings. The AJ noted that under EEO Management Directive 110, parties are generally required to bear their own discovery costs but that a complainant could seek to recover such costs should the complainant prevail on the merits of the underlying complaint. Since Complainant did not prevail on the merits in this case, the AJ found, she was not entitled to reimbursement for the costs. We discern no basis to disturb the AJ's finding in this regard.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown, by a preponderance of the evidence, that discrimination occurred. With regard to the denial of official time, we find that the record requires additional development. We therefore AFFIRM the Final Order in Part and REVERSE in part and we REMAND the matter of Official Time to the Agency for a supplemental investigation.
ORDER (E0610)
Within sixty (60) days of the date this decision becomes final, the Agency is ordered to conduct a supplemental investigation into the issue of the denial of official time. The investigation should address how much management, to include specifically the management official (S3) who authorized official time for Complainant's representative, knew about the representative's schedule of both Agency and Union tasks. The investigation should further address whether or not the representative was able to reschedule his other Union duties on December 12 and 14, 2012, as well as any other dates relevant to this complaint, and whether or not S3 offered the representative additional alternate dates upon being told the initial alternate dates were unsuitable.
Thereafter, the Agency shall issue a decision and provide Complainant with a copy of the decision with appropriate appeal rights, unless this matter is otherwise resolved.
A copy of the supplemental investigation and a new Agency decision shall be provided to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
December 5, 2017
__________________
Date
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120152039
2
0120152039