Georgianne B.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionNov 21, 20180120171727 (E.E.O.C. Nov. 21, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Georgianne B.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120171727 Agency No. HQ-16-0613-SSA DECISION On April 12, 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 March 22, 2017 final agency decision (FAD) 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. 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 Project Manager, GS- 0343-14, at the Agency’s Office of Central Operations (OCO), Office of Earnings and International Operations (OEIO), Division of International Operations (DIO) facility in Baltimore, Maryland. Complainant served as Deputy Division Director of OCO, Center for Program Support (CPS) in the Division of Training and Policy Support (DTPS) until she was reassigned to the Project Manager position on May 5, 2016. DTPS was established in early 2016 as part of the Agency’s Sustainability Plan. However, the Agency underwent additional reorganization, which eliminated Complainant’s Deputy Division Director position. On March 8, 2016, Complainant attended a business trip with management officials including, her first-level supervisor (S1). 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. 0120171727 2 Complainant informed the officials that she had received an invitation to attend a ten-day Agile Leadership Incubator training class at no cost. Complainant alleged that S1 and her third-level supervisor (S3) verbally approved her attendance for the training. Shortly thereafter, S1 requested additional information on the training. On March 11, 2016, Complainant provided management officials with the details of the training and requested written approval to attend the training. S1 responded a few days later, on March 14, 2016, notifying Complainant that the training request required additional discussion and requesting that Complainant hold off on attending the training. One day prior to the commencement of the training, on March 17, 2016, Complainant emailed management officials, stating that she would be attending the offsite training class on March 18, 2016. In addition, Complainant submitted a leave request indicating that she would be attending the training class. S1 emailed and called Complainant requesting that she not attend the training class because the OCO had not approved her attendance. S1 approved the leave request, and they both agreed to discuss the matter at another time. In addition, S3 called Complainant and informed her that OCO had not approved the training and requested that Complainant not attend the training. Complainant attended the training course on her own time. On March 24, 2016, Complainant met with S3 who expressed concerns about how Complainant had received the offer for the training and explained to Complainant that the training was not relevant to her position. On May 5, 2016, OEIO’s Senior Advisor informed Complainant that she was being reassigned to the position of Project Manager with an effective date of May 30, 2016. The reassignment did not result in a change of grade or pay. Complainant alleged that she had no prior notice of the impending change and that she was not offered any other options. On July 13, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of national origin (Asian) and in reprisal for prior protected EEO activity when: 1. On May 9, 2016, Complainant was reassigned from her managerial position as Deputy Division Director in DTPS to a non-managerial position in DIO; and 2. Since March 8, 2016, the Agency subjected her to harassment and discrimination in terms of training and working conditions. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency initially dismissed Complainant’s reprisal claim for failure to state a claim. Complainant affirmed that she had no prior EEO activity, but that she had opposed discrimination. She added that management further retaliated against her for her training attendance. However, the Agency reasoned that the evidence of record did not indicate that Complainant communicated a belief that the denial of her training request was unlawful discrimination. 0120171727 3 The record revealed that Complainant attended the training on her own time, despite management’s directive otherwise, and her opposition to the directive was not due to her belief that management’s decision was based on unlawful employment discrimination. As such, the Agency dismissed Complainant’s reprisal claim, finding that there was no evidence of prior protected activity or opposition activity. The Agency then assumed arguendo that Complainant had established a prima facie case of discrimination and determined that management had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to her reassignment, Complainant was reassigned as a result of a Sustainability Plan aimed at eliminating some positions and combining components. Complainant’s division was eliminated, as was her position. Management officials explained that in reviewing the new organization, reassigning the Branch Manager of the Management Support Branch to the Deputy Division Director position and eliminating Complainant’s position provided greater management oversight. Moreover, DIO had a vacancy for a GS-14 Project Manager and Complainant had the requisite skills for the position. The Agency noted that a February 2016 Sustainability Plan suggested that management reviewed the organizational structure to identify ways to streamline business processes. The Agency determined that Complainant failed to provide evidence to rebut the Agency’s nondiscriminatory reason for her reassignment. With respect to training, management provided multiple reasons for denying Complainant’s training request and Complainant failed to rebut the Agency’s assertions. With respect to Complainant’s hostile work environment, the Agency determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. In addition, Complainant failed to show that management’s actions were motivated by discriminatory animus. As a result, the Agency determined that Complainant failed to establish that she was subjected to discrimination or a hostile work environment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the FAD shows that the Agency failed to properly review her claims. In addition, Complainant includes the request for a FAD she submitted to the Agency which included several enclosures. Therein, Complainant attempted to include additional information to support her complaint and alleged numerous additional claims. Accordingly, Complainant requests that the Commission reverse the FAD. The Agency requests that the Commission affirm the final decision. 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). 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 0120171727 4 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 lawâ€). Additional Claims On appeal, Complainant submitted her request for a FAD following her receipt of the ROI. Therein, Complainant enclosed additional information including additional claims of discrimination and hostile work environment. A complainant may add claims or incidents that are like or related to those raised in a pending complaint at any time prior to the issuance of the notice required by 29 C.F.R. § 1614.108(f) at the completion of the investigation. The Agency's notification as required by EEOC regulation was provided to Complainant on January 25, 2017. Complainant failed to amend her complaint to add additional claims of hostile work environment at any time between when she filed her formal complaint and when she received the Agency's notice regarding the completion of the investigation. Accordingly, the Commission finds that the additional claims raised are not properly before us. Procedural Dismissal The Commission notes that the Agency dismissed Complainant’s reprisal claim for failure to state a claim. The Agency concluded that, based upon Complainant’s own assertions, Complainant had no prior protected EEO activity. EEOC Regulation 29 C.F.R. § 1614.101(b) provides that no person shall be subject to retaliation for opposing any practice made unlawful by Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, or the Rehabilitation Act, or for participating in any stage of administrative or judicial proceedings under those statutes. In order utilize the EEO complaint process under 29 C.F.R. Part 1614 with a claim of unlawful retaliation, an individual must initially have alleged that he or she engaged in prior protected activity as defined by 29 C.F.R. § 1614.101(b). Complainant alleged that she opposed discrimination, but provided no specific instances of opposition or prior EEO activity. Nothing in Complainant’s allegations suggests in any way that Complainant engaged in protected activity. Upon review, we find that the Agency properly dismissed Complainant’s reprisal allegation for failure to state a claim. Disparate Treatment 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). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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). 0120171727 5 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We shall assume, arguendo, that Complainant established a prima facie case of discrimination with regard to her claims. However, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, regarding Complainant’s reassignment claim, S1 affirmed that Complainant’s position was changed in connection with a reorganization of management following the merger of two offices. ROI, Ex. 9, at 11. Complainant’s fifth-level supervisor (S5), the Associate Commissioner of OCO, added that Complainant’s reassignment was conducted as part of the Agency’s Sustainability Plan, which was aimed at reducing costs, eliminating unnecessary positions, creating more appropriate positions, and aligning common business processes. ROI, Ex. 2-3, at 2-3. S5 affirmed that the realignment initially divided Complainant’s prior division with some staff moving to the Center for Automation, Security, and Integrity, and other staff members moving to the DTPS in OEIO. Id. In reviewing the new organization, the Acting Associate Commissioner determined that the Agency could most effectively provide oversight to the entire component with a reassignment of the Management Support Branch Manager to a Deputy Director position in Wilkes Barre and eliminating Complainant’s position in Baltimore. Id. S1 stressed that she supported the recommendation from Complainant’s supervisor to choose another Deputy Director located where 70 percent of the organization resided. ROI, Ex. 9, at 11. S1 explained that she believed Complainant’s skillset could be better utilized in International Operations based upon her interest in becoming a manager and travelling internationally. Id. S3 corroborated S1’s assertions and added that the move reduced redundancy. Id. at 80. With respect to Complainant’s denied training request, S5 affirmed that management officials had concerns about whether the training was appropriate for Complainant based on her job duties. ROI, Ex. 2-3, at 2. S1 asserted that she advised Complainant not to plan to attend the course until a determination was made concerning attendance by appropriate staff. ROI, Ex. 8, at 3. Similarly, S5 asserted that the training appeared more suitable for Information Technology positions such as those in the Office of Electronic Services and Technology. ROI, Ex. 3, at 2. S5 asserted that management ultimately chose not to approve the training because it was not relevant to Complainant’s position and Complainant’s unit was in transition. Id. According to S1, additional reasons for the denial of Complainant’s training request included a vague training agenda, failure to provide training dates, lack of leadership in the newly merged organization, lack of a decision from the Office of General Counsel regarding the ethics of Complainant’s attendance at the training, and management’s determination that Complainant’s request to be absent for 10 days for a training that was unrelated to her job was excessive. ROI, Ex. 9, at 3-4, 7. We find that Complainant did not prove, by a preponderance of the evidence, that the Agency’s reasons were a pretext for discrimination. Hostile Work Environment 0120171727 6 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. With respect to Complainant’s claim that she has been subjected to a hostile work environment since March 8, 2016, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Moreover, even if accurately described by Complainant, the alleged incidents were not severe or pervasive enough to establish a hostile work environment. Harris, 510 U.S. at 21. 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 finding that Complainant was not subjected to discrimination. 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. 0120171727 7 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. 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. 0120171727 8 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 November 21, 2018 Date Copy with citationCopy as parenthetical citation