Kina V.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionNov 1, 20160120142541 (E.E.O.C. Nov. 1, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kina V.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120142541 Hearing No. 520-2012-00432X Agency No. BOS-10-0949-SSA DECISION The Commission accepts Complainant’s appeal from the Agency’s final action 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Service Representative at the Agency’s Field Office in Presque Isle, Maine. On or about June 3, 2010, the Agency awarded two types of awards to employees: the Exemplary Contribution Service Award (ECSA) and Recognition of Contribution (ROC) award. The ECSA award is a cash award that recognizes individual contributions to group achievement and performance that have promoted the Agency’s mission or extraordinary acts performed while on duty. The ROC award is based on individual performance and contributions to the Agency’s mission during the most recently completed appraisal period. An employee must receive an elemental average rating of at least “4” is his or her annual performance appraisal to be eligible for an award. 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. 0120142541 2 Complainant’s supervisor (S1) did not recommend Complainant for either award, and she did not receive an award for Fiscal Year 2009. In September 2009, Complainant’s second-level supervisor (S2) determined that Complainant needed additional training in processing Special Wage Payments forms. No other service representative was required to receive the training. Complainant was informed that a quality review indicated that she was in need of the training. Complainant claims that she did not need the training and that S2 could not explain why he believed she needed the training. Additionally, in September 2009, S2 sent Complainant an email reminding her of the three- month rule for setting up appointments. Complainant denied that she prematurely set up appointments and claims that S2 could not provide her more information. In October 2009, S2 issued Complainant a letter of reprimand for being in the office outside of her tour of duty. S2 had instituted a policy prohibiting employees from staying more than five minutes past the scheduled end of their tour. Complainant claims that no other employee got a reprimand for being in the office outside of his or her tour of duty. On December 9, 2009, Complainant alleges that S1 came to her desk and accused her of taking too long on her breaks, not returning claimants’ phone calls, and prematurely making appointments. In December 2009, Complainant went to S2’s office to request to look in her employee file. S2 told Complainant she could see it, but she could not take it from his office. Complainant claims that she asked S2 where he kept his “nasty notes” on her. Complainant alleges that S2 told her he kept this information on a computer device in his drawer. Additionally, in December 2009, Complainant claims she returned from her day off to find that the bag was removed from her garbage can in her office. Complainant alleges that her co- workers did not have their garbage can or bag removed. Complainant claims that she later saw that her bag of garbage was in S2’s office with a post-it note attached asking the cleaning crew not to take it. Complainant alleges that S2 then took the bag to S1’s office for her to shred it. On November 11, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of age (55) and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, she did not receive a 2009 performance award; she was told that she needed additional training; her work performance was criticized; she was told she was taking overly long breaks; she received a written reprimand; her trash can was removed from her office; and she was told her supervisor had a file regarding her. 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). Complainant timely requested a hearing, but the AJ granted summary judgment in favor of the Agency and issued a decision without a hearing on September 10, 2013. 0120142541 3 In the decision, the AJ determined that Complainant failed to show that the alleged incidents were based on discriminatory or retaliatory animus. Specifically, as to awards, S1 stated that he did not recommend Complainant for either the ECSA or the ROC awards because she did not volunteer for any additional work and kept to herself. Although Complainant occasionally assisted another co-worker, S1 stated that this was not the type of work required for an ECSA. S2 added that ECSAs were not granted to employees for fulfilling the basic duties of their job. S2 stated that despite receiving examples of what types of actions she might take to be considered for an award, management did not believe Complainant performed these actions. Regarding additional training, S2 affirmed that he received two complaints from members of the public that Complainant had mishandled their earnings issues. Accordingly, he instructed the Agency’s technical experts to review some of Complainant’s processed cases and to provide training on processing wage payments. Complainant was the only employee required to take the training as she was the only one about whom he received complaints. As to her work performance, S2 stated that he made the comments because Complainant prematurely set up appointments. S1 did so as well when he received a complaint from a member of the public. Regarding the letter of reprimand, management issued it because she was in chronic violation of the Agency’s policy of not being in the office outside of her tour despite being repeatedly warned and counseled about it. With respect to breaks, S1 confirmed that he spoke to all employees about extending their breaks, and he spoke to employees individually if he observed them doing it. Next, Complainant argued that the Agency’s reasons for its actions were pretextual for discrimination and reprisal. In particular, Complainant argued that she believed she was eligible for an ECSA because the quality of her work had never been questioned, she worked diligently and handled her share of the workload, she asked questions when necessary, and she demonstrated exemplary contributions to the group. S2 explained that these activities were not the type of extra work required for the award and the duties she mentioned were part of her job description. Additionally, Complainant believed that the District Office was higher rated statistically than many other offices in the region due in part to her contributions to the office. The AJ determined that the fact that Complainant’s office was highly rated does not mean that her individual contribution to that rating was sufficient to make her eligible for an award. The AJ concluded that Complainant’s mere speculation was insufficient to demonstrate that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant had not been subjected to discrimination, reprisal, or a hostile work environment as alleged. When the Agency did not issue a final order within 40 days of receipt of the AJ's decision, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of the Agency. Complainant claims that S2 developed inappropriate, close relationships with 0120142541 4 younger employees and failed to treat everyone fairly. Complainant challenges the Agency’s criteria for awards and argues that management discounted the additional work she did for co- workers. Additionally, Complainant claims that she was unnecessarily given training. Finally, Complainant contends that the AJ’s decision was deficient and left many issues unaddressed. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. Hostile Work Environment 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. The Commission agrees with the AJ that, construing the evidence in the light most favorable to Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, with regard to awards, S1 affirmed that he did not recommend Complainant for an ECSA performance award for Fiscal Year 2009 because she did not consistently volunteer for additional work. ROI, Ex. 7, at 3. S1 added 0120142541 5 that he looked for employees who voluntarily take on extra work; interacted well with co- workers; and had a positive attitude. Id. S2 noted that Complainant was ineligible for an ROC award as her elemental average on her Fiscal Year 2009 performance appraisal was below the 4.0 threshold. ROI, Ex. 8, at 3; Agency’s Motion for Summary Judgment, Attach. 2. Further, S2 commented that Complainant was not recommended for an ECSA award because she did not perform an extraordinary service or act, or demonstrate exemplary individual contributions that promoted the mission of the Agency. ROI, Ex. 8, at 2-3. Regarding her work performance and additional training, S2 maintained that he received two complaints by members of the public alleging that Complainant had incorrectly handled their earnings issues. ROI, Ex. 8, at 7. S2 feared that an earnings issue could lead to overpayments, financial hardships, or public relations issues; therefore, he ordered the technical expert to review Complainant’s cases and provide training where warranted. Id. S2 denied that he kept a file of “nasty notes” about her. Id. at 8. As to being accused of taking longer breaks, S1 contended that he generally reminds all employees of their break times and lunches, and would only say something about it to an employee if he observed it. ROI, Ex. 7, at 6. With respect to the letter of reprimand, S2 stated that he issued it because Complainant was remaining in the facility well after the office had closed and all other employees had gone home. ROI, Ex. 8, at 6. S2 affirmed that he instituted a policy that employees were to enter no more than five minutes before the start of their tour if he or she would be the only person in the building and employees were to leave within five minutes of the end of their tour if no one else was in the building. Id. This policy was created after an incident in which Complainant allowed two members of the public inside long after the office had closed. Id. The next morning, a security guard noted that a large item had been stolen from his desk. S2 noted that Complainant violated the policy numerous times, and he gave her several warnings prior to issuing the letter of reprimand. Id. Construing the evidence in the light most favorable to Complainant, the Commission agrees with the AJ that Complainant has not shown she was subjected to a hostile work environment. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation was pretext for discrimination or reprisal. As a result, the Commission finds no basis to disturb the AJ's summary judgment decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Equal Employment Opportunity Commission 0120142541 6 Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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. The requests 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 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. 0120142541 7 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 November 1, 2016 Date Copy with citationCopy as parenthetical citation