Malcom N.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Apr 16, 2019

0120180691 (E.E.O.C. Apr. 16, 2019)

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

Malcom N.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120180691

Agency No. SSACOI160581

DECISION

On August 30, 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
August 1, 2017, final decision concerning his 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Customer Service
Representative, GS-08, at the Agency’s Office of Operations, Atlanta Regional Office,
Birmingham Telephone Service Center (TSC) facility in Birmingham, Alabama.

In November 2014, Complainant sent a written request to his first-level supervisor (S1), requesting
to be provided with the “same opportunity to succeed as his classmates.” Specifically,
Complainant requested to be mentored by two specific individuals, instructors from his training
class. Complainant claimed that he contacted the instructors and that both agreed to mentor him.

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.
0120180691

2
Complainant stated that S1 subsequently informed him that the instructors could not mentor him
because it was against Agency policy for instructors to serve as mentors. One of Complainant’s
requested mentors was later assigned to mentor him.

In January 2015, Complainant claimed that he informed management officials about alleged
harassment. In January 2015, Complainant asked for reassignment to a position that was less
stressful. Management offered Complainant two less stressful positions at his current pay.
Complainant declined both offers.

On or about August 15, 2015, Complainant alleged that he wished to file an EEO complaint, but
the EEO Specialist failed to assign him an EEO case number. Complainant claimed that he
followed up on September 14, 2015, three weeks later with the Office of Civil Rights and Equal
Opportunity (CREO) within time for them to assign an EEO Case number and an EEO Case
number was still not assigned.

On August 18, 2015, S1 notified her management chain that Complainant asked to meet with her
and stated that he wanted to file sexual discrimination charges. ROI, at 226. In response, the TSC
Deputy Director wrote, “[j]ust for clarification. [Complainant] met with [S1] to tell her he wanted
to go to CREO to file a sexual harassment claim. He is in the CREO office right now.” Id.
Management officials convened an investigation into Complainant’s allegations.

On September 9, 2015, Complainant’s representative reached out to management officials to
follow-up on a discussion concerning Complainant’s hostile work environment interview. ROI,
at 228. Specifically, Complainant’s representative stressed that Complainant had concerns about
potential bias on the part of the interviewer and further noted that Complainant’s harassment claim
had not been processed with the same efficiency as a recent allegation against a member of
management. Id. Complainant believed that management had actively pursued relieving the stress
of three female co-workers who had raised harassment claims. Complainant did not identify these
three co-workers and stated that he did not know where they worked, however.

On October 26, 2015, Complainant’s representative contacted Agency officials, indicating that
conditions were worsening for Complainant in the TSC and requesting an immediate compassion
detail to a different unit. ROI, at 227. The TSC Regional Director responded, stating that it was
her expectation that Complainant would meet with individuals who had been trying to schedule a
meeting for weeks to discuss Complainant’s allegations. Id. Management later determined that
Complainant’s harassment allegations were unsubstantiated.

In a memorandum dated December 2, 2015, the TSC Deputy Director informed Complainant that
he was being reassigned to a new section and unit. The notice indicated that it was a “non-
precedential action taken in consideration of [Complainant’s] recent allegations brought to
management’s attention.” ROI, at 327.

0120180691

3
On June 12, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American), national origin (American), sex (male), and
in reprisal for prior protected EEO activity when:

1. On or about August 15, 2015, Complainant found out that female coworkers alleged
discrimination and management actively pursued in relieving them of their stress.
However, when Complainant had alleged harassment months earlier, on or about
January 15, 2015, he remained in the same hostile work environment rather than
being reassigned to a different duty station.

Complainant further alleged that the Agency subjected him to discrimination and a hostile work
environment based on age (62), race (African-American), and in reprisal for prior protected EEO
activity when:

2. On or about August 15, 2015, an EEO Specialist failed to assign Complainant an
EEO case number; and

3. In November 2014, Complainant’s first-line supervisor misrepresented the truth
about the SSA policy when she told Complainant that a specific Instructor could
not be his mentor.

On July 11, 2016, the Agency dismissed Complainant’s formal complaint for untimely EEO
Counselor contact. Complainant appealed the Agency’s dismissal to the Commission. In Malcolm
N. v. Soc. Sec. Admin., EEOC Appeal No. 0120162612 (Jan. 11, 2017), we reversed the Agency’s
final decision dismissing the formal complaint and remanded the complaint for further processing.

At the conclusion of the investigation on the remanded claim, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his right to request a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with
Complainant’s request, 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 him to
discrimination as alleged.

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, regarding claim (1), management
explained that they acted on the female employees’ claims because they were substantiated, while
Complainant’s claims were not. As for claim (2), the Agency noted that Complainant
acknowledged that intake documentation was created for his allegations, but even assuming that
Complainant did not receive a case number, Complainant was allowed to file the complaint and
documentation was taken regarding his allegations. With respect to claim (3), the Agency found
that Complainant had access to 13 mentors, management preferred for mentors to work within
their own sections, and ultimately, Complainant was approved to work with the mentor of his
choice once that mentor was moved into his section.
0120180691

4

Finally, with regard to Complainant’s hostile work environment claim, the Agency found that the
alleged incidents were insufficiently severe or pervasive to amount to a hostile work environment.
Further, the Agency determined that there was no evidence that the alleged conduct was based on
Complainant’s protected classes. As such, the Agency found that Complainant failed to show that
he was subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Commission should sanction the Agency because the
FAD was untimely. Complainant adds that the Agency is attempting to provide new evidence on
appeal, including evidence presented regarding the Agency’s mentoring policy. Complainant
reiterates his arguments that an EEO Specialist failed to assign him a case number and further
contends that the Agency Attorney willingly filed an unjust request for dismissal. Complainant
maintains that he should not be precluded from litigating his claims. Accordingly, Complainant
requests that the Commission reverse the FAD.

The Agency argues that Complainant failed to demonstrate that sanctions are warranted for the
untimely FAD, as it was issued only nine days after the expiration of the 60-day period set forth
in the regulations. Finally, the Agency reiterates the contention that Complainant failed to
establish that he was subjected to disparate treatment or harassment because of his race, sex, age,
national origin, or prior EEO activity.

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
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 law”).

Complainant's Request for Sanctions Against the Agency

As an initial matter, the Commission will address the Agency’s untimely issuance of its FAD and
Complainant’s request for default judgment in his favor as a sanction. EEOC Regulations provide
that an agency shall issue the final decision within 60 days of receiving notification that a
complainant has requested an immediate decision from the agency, or within 60 days of the end
of the 30-day period for the complainant to request a hearing or an immediate final decision where
the complainant has not requested either a hearing or a decision. 29 C.F.R. §1614.110(b).

0120180691

5
Complainant submitted a request for a FAD on May 24, 2017. On August 1, 2017, the Agency
issued a FAD, eight days late. The Agency has provided no explanation for the late issuance of
the final decision. However, we find that the Agency did not act in a manner to warrant sanctions.
Additionally, we note that Complainant did not make a showing that he was prejudiced by the
Agency’s brief delay. Thus, although the Agency failed to issue a timely decision as required by
regulation, the Commission finds that the Agency did not act in a manner to warrant a default
judgment sanction. See, e.g. Josefina L. v. Soc. Sec. Admin., 0120142023 (July 19, 2016), req.
for recon. den’d, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency’s 571-
day delay in issuing the FAD did not warrant sanctions, as complainant did not show she was
prejudiced by the delay); Abe K. v. Dep’t of Agric., EEOC Appeal No. 0120141252 (Nov. 4,
2016)(declining to sanction an agency that issued a FAD after approximately 326 days when
complainant failed to show that he was prejudiced by the delay); Jocelyn R. v. Dep't of Def., EEOC
Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No.
01A55147 (May 12, 2006) (declining to sanction an agency that issued a FAD after approximately
371 days)). Accordingly, under the specific circumstances of this case, we decline to issue
sanctions against the Agency for the delay in issuing the FAD. We take this opportunity, however,
to remind the Agency of its obligation to comply with Commission regulations in a timely manner.

Hostile Work Environment

The Commission notes that to establish a claim of harassment a complainant must show that: (1)
he belongs to a statutorily protected class; (2) he 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 his 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 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 his harassment claim, Complainant must establish that he 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 his protected classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

Complainant asserted that based on his protected classes, management subjected him to a hostile
work environment. Complainant alleged several incidents of what he believed to be discriminatory
harassment. The Commission finds that Complainant has not shown that he was subjected to
conduct sufficiently severe or pervasive to create a hostile work environment.

Moreover, 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 Commission notes that Title VII is not a civility code.
0120180691

6
Rather, it forbids “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). The record
reflects that the alleged incidents were more likely the result of routine supervision, personality
conflicts, and general workplace disputes and tribulations. More specifically, with respect to
Complainant’s claim that management did nothing to address his concerns about his treatment,
Agency officials asserted that Complainant’s claims of harassment were investigated but were not
substantiated. ROI, at 159. The Regional TSC Director stated that management determined that
Complainant’s hostile work environment allegations were not supported while the female
employees in question presented substantiated sexual harassment allegations. Id. at 132. As for
Complainant’s assertion that management did not actively work to reduce his stress following his
harassment allegations, S1 affirmed that Complainant requested a different position with less
stress. Id. at 123. Management offered Complainant both a position in the mailroom and the
opportunity to return to his former position at his current pay scale; however, he declined the
offers. Id. Moreover, management officials confirmed that Complainant was later moved to
another section. Id. at 150, 327.

With respect to Complainant’s allegation that an EEO Specialist failed to assign an EEO case
number, management officials, except for S1, denied knowledge of Complainant’s allegations.
ROI, at 141, 167. S1 affirmed that Complainant mentioned that he had not received a case number
during a performance discussion but left and provided the information to his representative in
Congress. Id. at 122. Evidence included in the record reflects ongoing discussions regarding
Complainant’s hostile work environment concerns between August and December 2015. Id. at
226-228. In addition, the record indicates that Complainant filed three complaints between April
2015 and December 2015, which were docketed by the Agency and included claims of a hostile
work environment and discrimination based on sex. We find no evidence to support
Complainant’s allegation that the Agency failed to assign an EEO case number during the relevant
period based upon his protected classes.

Regarding Complainant’s mentoring claim, although the TSC Deputy Director stated that there
was no specific mentoring policy, S1 asserted that each section preferred to use their own mentors
and the TSC Section Manager affirmed that she rejected Complainant’s request for a specific
mentor because management preferred not to select mentors outside of their section if it can be
avoided. ROI, at 122, 150, 159. S1 added that the mentor Complainant requested was assigned
to a different section, but Complainant had access to at least 13 other mentors while he was in
Section Three. Id. S1 stated that Complainant’s requested mentor was assigned near the end of
Complainant’s Performance Assistance Plan when the mentor was moved to his section. Id.

Complainant has not shown that he was subjected to a discriminatory or retaliatory hostile work
environment. Moreover, to the extent Complainant claims that he was subjected to disparate
treatment, the Commission finds that, as discussed above, Complainant has not proffered any
evidence from which a reasonable fact finder could conclude that the Agency’s explanation for its
actions was pretext for discrimination or reprisal.

0120180691

7
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 decision finding no 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.
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.
0120180691

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

April 16, 2019
Date