Marquis K.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Oct 31, 2018

0120182229 (E.E.O.C. Oct. 31, 2018)

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

Marquis K.,1
Complainant,

v.

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

Appeal No. 0120182229

Agency No. CHI-17-0554-SSA

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 27, 2018
final decision concerning an 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked for the Agency as a Claims Specialist, GS-11, in
Traverse City, Michigan.

On July 21, 2017, Complainant filed a formal EEO complaint alleging he was subjected to
discrimination based on race (Caucasian), sex (male), color (white), disability, age (over 40), and
in reprisal for prior EEO activity when:

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.
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1. beginning March 7, 2017 and ongoing, regarding working conditions, assignment of
duties, and time and attendance, including denial of official time;

2. Agency management failed to accommodate him based on his disability;

3. he was subjected to harassment and a hostile work environment on the bases of color
national origin, age and in reprisal for prior EEO activity when:

a. an Operations Supervisor continued to use the Agency’s Outlook and
messenger system to monitor Complainant’s time and attendance and
whereabouts and used that information in the past, to have an affair with
his former spouse;

b. his co-workers continued to talk to him about their knowledge of the
Operations Supervisor’s affair with his former spouse and that the
Operations Supervisor lives with his former spouse;

c. he feared for his safety because the Operations Supervisor allegedly has a
pattern of having affairs with married women and the Operations
Supervisor told him that he received a death threat from an ex-lover’s
husband;

d. he has not been able to do his job and has had to rely on his co-workers to
handle his tasks because he fears interaction with the Operations
Supervisor; and

4. he was subjected to harassment and a hostile work environment based on parental
status (father of three), marital status (single) and conduct that does not adversely
affect the employee’s performance when beginning March 7, 2017 and ongoing,
regarding working conditions, assignments of duties, and time and attendance,
including denial of official time.

The Assistant District Manager of the Traverse City District Office was Complainant’s first level
supervisor and the District Manager was his second level supervisor. From 2007 to 2010, the
Operations Supervisor was a Claims Specialist alongside with Complainant in the Traverse City
office. In 2010, the Operations Supervisor was promoted to an Operations Supervisor at the
Agency’s Cadillac, Michigan branch office.

After its investigation of the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ).2 In accordance with Complainant’s request, the Agency issued a
final decision, pursuant to 29 C.F.R. § 1614.110(b), on April 27, 2017.

2 The record reflects that during the investigation, Complainant did not submit an affidavit.
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In its April 27, 2018 final decision, the Agency dismissed claim 3 on the grounds of stating the
same claims which were raised in a prior EEO complaint, pursuant to 29 C.F.R. §
1614.107(a)(1). The Agency further determined that the subject claim was a “spin-off” because
it involves the same issues previously in a prior formal complaint identified as Agency Case No.
CHI-13-0435-SSA.

The Agency also dismissed claim 4 pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a
claim. Specifically, the Agency indicated that such a basis (i.e. marital and parental status) was
outside of the scope of the EEO process.

The Agency then proceeded to address claims 1 and 2 on the merits, finding that Complainant
did not show by a preponderance of the evidence that he was discriminated against on the bases
of race, sex, color, disability, age and retaliation. The Agency further concluded that
Complainant did not prove that it failed to provide him with reasonable accommodation for his
disabilities.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

Same claim: Claim 3

EEOC Regulation 29 C.F.R. 1614.107(a)(1) provides that an agency shall dismiss a formal
complaint that addresses the same claim that is pending or has been decided by an agency or the
Commission.

A fair reading of the record reflects that the matters identified in claim 3 are encompassed in a
prior EEO complaint, (Agency Case No. CHI-13-0435-SSA), which was the subject of an
Agency final decision finding no discrimination, and which was affirmed on appeal by the
Commission. Complainant v. Social Security Administration, EEOC Appeal No. 0120160047
(January 12, 2018); request to reconsider denied, EEOC Request No. 0520180239 (June 14,
2018).

Because we determine that claim 3 was properly dismissed for stating the same claim previously
raised in a prior complaint, we find it unnecessary to address alternative dismissal grounds.

Failure to state a claim: Claim 4

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency
shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion, sex, national origin, age or
disabling condition 29 C.F.R. §§ 1614.103, .106(a).
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The Commission’s federal sector case precedent has long defined an “aggrieved employee” as
one who suffers a present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).

Here, Complainant asserted in this claim he was subjected to harassment identified in the same
fashion as addressed in claim 1, based on marital and parental status. We find that the Agency
properly dismissed this basis as it is not a basis covered by 29 C.F.R. Part 1614 EEO complaint
process. See 29 C.F.R. § 1614.103(a).

Reasonable Accommodation: Claim 2

Complainant asserted that he has been diagnosed with multiple medical impairments, including
stress, anxiety, depression, migraines, back pain, severe chronic pain and right ankle pain. We
will assume without so finding, that Complainant is a qualified individual with a disability.

Under the Commission’s regulations, an agency is required to make reasonable accommodations
to the known physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue hardship. 29
C.F.R. § 1630.9.

Here, however, Complainant has not explained what request for accommodation he was denied
or that he even made a request during the relevant time period. The record indicates in 2011 he
may have been denied a request for a keyboard, but there is no evidence that this request was
renewed during the time period covered by his complaint. The Assistant District Manager
(Caucasian, white male, no disability, year of birth 1957, prior protected activity, also
Complainant’s supervisor, stated that any time an employee requests reasonable accommodation,
he would be directly involved in the reasonable accommodation process. The supervisor stated
that he was not aware of Complainant requesting any type of reasonable accommodation during
the period at issue.

The District Manager (Caucasian, white female, unknown disability, year of birth 1968,
unknown prior protected activity) stated that during the relevant period she was Complainant’s
second level supervisor. The District Manager explained that employees request reasonable
accommodation through their first level supervisor. The District Manager stated that during the
relevant period she was not aware of Complainant’s disability or any accommodation request.

Based on our review of the entire record in the case, we find that Complainant has not
established that the Agency failed to reasonably accommodate him. We find that the evidence of
the record supports the Agency’s findings on this issue – that there is no evidence that the
Agency denied Complainant a request for reasonable accommodation during the period at issue.
Accordingly, we find Complainant has failed to prove that the Agency violated the
Rehabilitation Act regarding reasonable accommodation.

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Disparate Treatment: Claim 1 (working conditions, assignment of duties, time and attendance)

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of
Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v.
Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

The supervisor stated that during the relevant period he was responsible for assigning
Complainant duties. The supervisor noted that Complainant had several adjustments since
March 2017. Specifically, the supervisor stated that in July 2017, a Claims Representative
returned from maternity leave and “took over assignments that other claims representatives had
taken over during her absence. We also had an employee transfer in to the office and hired a
new employee and divided work amongst everyone. Everyone in the office was affected by
these workload assignments. We divided it based on the personnel that we had available.”

Further, the supervisor acknowledged that Complainant received less work when the Claims
Representative returned to work from maternity leave. The supervisor explained that he used the
same guidelines and procedures “that I have used over the years. I discuss the issues with
employees in the unit and solicit suggestions and feedback. Final changes are discussed with
office management and submitted to the Union for comment. The Complainant is the union rep
and had the opportunity to discuss changes both as an employee and with the Union perspective
prior to implementation and did not raise any concerns.”

The supervisor stated that in regard to the time and attendance issue, he and other supervisors are
responsible for time and attendance within Complainant’s department. Furthermore, the
supervisor stated that he did not harass Complainant concerning his time and attendance issue.
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Moreover, the supervisor stated that he did not discriminate against Complainant based on his
race, sex, color, disability, age and prior protected activity.

Claim 1 – official time

EEOC Regulation 29 C.F.R. § 1614.605(b) provides that if a complainant is an employee of an
agency, he shall be given a reasonable amount of official time, if otherwise on duty, to prepare a
complaint and to respond to agency and EEOC requests for information.
Regarding the official time off issue, the supervisor stated that he would deny an employee’s
request for official time off “for a workload consideration that I could not make any adjustment
to cover. I have never denied any of the Complainant’s requests for time off.”

Hostile Work Environment

With regard to Complainant’s hostile work environment claim, to establish a claim of hostile
environment harassment, 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 an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In other words, 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 bases – in this case, his race, sex, color,
disability, age or prior EEO activity. Only if Complainant establishes both of those elements,
hostility and motive, will the question of Agency liability present itself. Here, Complainant
simply has provided no evidence to support his claim that his treatment was the result of his race,
sex, color, disability, age or prior EEO activity.

CONCLUSION

We have reviewed the record in its entirety, and we AFFIRM the Agency’s dismissal of claims 3
– 4 on procedural grounds, as well as the finding that it did not deny Complainant official time.
Moreover, we AFFIRM the finding no discrimination concerning claims 1 – 2 because the
preponderance of the evidence of record does not establish that discrimination occurred.

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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. 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.

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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
October 31, 2018
Date