Crysta T.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionFeb 3, 20160120142957 (E.E.O.C. Feb. 3, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Crysta T.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120142957 Agency No. NY13-0331-SSA DECISION On August 22, 2014, Complainant filed an appeal from the Agency’s August 8, 2014 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Claims Examiner at the Canarsie District Office in Brooklyn, New York. On August 16, 2012, she entered into an EEO settlement agreement, the terms of which included receipt of training and management’s assistance in the completion of a hardship transfer request, which had initially been denied. Investigative Report, Exhibit (Ex.) 12, pp. 1-3. On May 8, 2013, Complainant filed an EEO complaint in which she alleged that the Hardship Transfer Coordinator (HTC) subjected her to harassment and disparate treatment because of her race and national origin (African-American) and because of the previous EEO settlement agreement by delaying action on her hardship transfer request from October 25, 2012 to February 11, 2013. She also alleged that in December 2012, the Area Director (AD) 1This 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. 0120142957 2 created obstacles to her completion of the Training required by the August 2012 settlement agreement. At the conclusion of the ensuing investigation, the Agency notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In accordance with the terms of the August 2012 settlement agreement, Complainant resubmitted her request for a hardship transfer to the HTC on October 25, 2012. She was notified on February 11, 2013, that her request had been approved. She contends that the HTC intentionally delayed the processing of her request for over three months while at the same time approving the hardship transfer request of a White Claims Examiner in less than 30 days. Ex 6a, pp. 3-4; Ex. 6e, p. 5. The HTC averred that there was no delay in processing Complainant’s request beyond the delays normally experienced during the November- December holiday season. The HTC also averred that Complainant’s request had to be approved by several layers of management and that her request had been accompanied by extensive supporting documentation, all of which had to be reviewed. In addition, the HTC testified that the comparative employee was in a different situation than Complainant, having lost her home to Hurricane Sandy. Ex. 7, pp. 3-5; Ex. 10, pp. 3-4; Ex. 13a. p. 12; Ex, 13b; Ex. 13e, p. 2; Ex. 14; Ex. 15a, p. 2. With regard to her claim regarding training, Complainant averred that the AD forced her to work in an environment that made it impossible for her to learn and retain the information she received from the training, and that this was one of the reasons why she requested a hardship transfer in the first place. Ex. 6a, pp. 6-8. The AD averred that Complainant was given the training she needed via taped lessons between September 17 and November 17, 2012, and that his only involvement in the matter was to direct the District Manager, his immediate subordinate, to ensure that Complainant was given the training. He noted that the training sessions were not full time, and that Complainant was still responsible for completing her day- to-day tasks. Ex. 8, pp. 3-4. The District Manager averred that she agreed to be Complainant’s mentor and made herself available for any questions or assistance that Complainant may require. She also testified that Complainant had successfully made up any classes that she had missed. Ex. 9, pp. 3-5. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s personnel decisions involving training and other terms and conditions of employment unless there is evidence of a discriminatory motivation on the part of the officials responsible for those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on her claims of hostile environment and disparate treatment, Complainant would have to 0120142957 3 prove, by a preponderance of the evidence, that the HTC or the AD were motivated by unlawful considerations of her race or previous EEO activity in connection with the incidents described in her complaint. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). In circumstantial-evidence cases such as this, Complainant can prove the existence of an unlawful motivation by presenting documents or sworn testimony showing that the reasons articulated by the HRC or the AD for their actions are pretextual, i.e., not the real reasons but rather a cover for discrimination or reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of pretext may include discriminatory statements or past personal treatment attributable to the HTC or the AD, comparative or statistical data showing differences in treatment across racial or ethnicity lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015). If Complainant fails to establish the existence of discriminatory intent on the part of any of the responding management officials, no further inquiry would be necessary as to whether the incidents involving her hardship transfer request or her training activities are severe or pervasive to rise to the level of harassment or constitute separate acts of discrimination under disparate treatment theory. Nicki D. v. Department of Veterans Affairs, EEOC Appeal No. 0120133247 (October 15, 2015). When asked by the investigator why she believed that the HTC delayed the processing of her hardship transfer request because of her race, national origin and previous EEO activity, Complainant responded that it was because of what the HTC had said to her as well as the HTC’s manner of addressing her. She also pointed to the faster processing of the Comparative’s hardship transfer request. Ex. 6a, pp. 5-6. She also maintained that the AD harbored a discriminatory animus toward her in connection with the training. Ex. 6a, p. 9. Her claim appears to rest on the notion that the acts complained of, in and of themselves are sufficient to establish motive. This is simply not true. The statutes the Commission enforces cannot prevent employers from making personnel decisions that employees disagree with, unless those decisions are rooted in expressly proscribed considerations. And on this crucial issue, Complainant did not provide evidence of any of the indicators of pretext described above. She has not submitted any sworn statements from other witnesses or documents that contradict the explanations provided by the HTC or the AD, or which call their veracity into question. We therefore agree with the Agency that Complainant failed to establish the existence of an unlawful motive on the part of the HTC or the AD with respect either incident at issue in her complaint. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 0120142957 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 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, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency†or “department†means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (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 0120142957 5 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 February 3, 2016 Date Copy with citationCopy as parenthetical citation