Melina K.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jun 3, 2016

0120141805 (E.E.O.C. Jun. 3, 2016)

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

Melina K.,1
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120141805

Hearing No. 510-2013-00149X

Agency No. NY-12-0406-SSA

DECISION

The Commission accepts Complainant’s appeal from the Agency’s February 21, 2014 final
order 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Case
Technician at the Agency’s Office of Disability Adjudication and Review in Ponce, Puerto
Rico. Complainant claims that on March 14, 2012, she took her lunch break 15 minutes later
than usual because she had been working on an assignment. Complainant alleges that her
supervisor (S1) saw her enter the lunch room and “scolded” her about following the rules in
front of her co-workers. Complainant reported the incident to her second-level supervisor (S2)
and he advised her that there was “nothing he could do” for her. Complainant did not receive
any discipline for the incident. Additionally, on or about March 26, 2012, Complainant claims
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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that S1 referred to her as a “gossip” loudly enough for her to hear when either walking past
her desk or in a conversation with a co-worker.

Complainant alleges that since September 2008, management has given away her duties to
younger employees. Complainant claims that S1 first assigned her duties to a student
employee, and that she has since done nothing in her job description other than prepare cases.
Complainant alleges that S1 exerted her authority by reassigning her work to the new student
employee.

On June 19, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of color
(darker complexion), age (54), and reprisal for prior protected EEO activity as evidenced by
multiple incidents including, inter alia, on March 14, 2012, S1 scolded Complainant and
accused her of taking the wrong lunch break in front of her co-workers; on March 14, 2012,
she reported the scolding to S2, who informed Complainant that he could not help her in the
matter; on or about March 26, 2012, S1 called Complainant a “gossip” while walking past her
desk; and, since September 2008, S1 gave Complainant’s regular duties to younger, less
seasoned employees.

At the conclusion of the investigation, 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). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on January 22, 2014.

In her decision, the AJ initially determined that the alleged incidents were not sufficiently
severe or pervasive to establish a hostile work environment. Next, the AJ found that there was
no evidence that the alleged incidents were motivated by discriminatory or retaliatory animus.
Specifically, as to the lunch room incident, witnesses confirmed that S1 established a lunch
protocol that she expected her employees to follow. The evidence inferred that this was not
the first occasion wherein Complainant unilaterally determined she would change her lunch
time schedule. Further, witnesses described S1’s interaction with Complainant in the lunch
room as abrasive and unprofessional; however, they also confirmed that S1 approached them in
a similar fashion when issues arose. Complainant went to S2’s office after the “scolding,” but
claimed that S2 did nothing to help her. S2 reminded Complainant that S1 was her first-level
supervisor. As Complainant’s first-level supervisor, she was well within her supervisory
authority to remind Complainant to “follow rules.” The record established that Complainant
was not disciplined for the incident.

With respect to Complainant’s claim that S1 called her a “gossip,” the AJ determined that the
incident did not rise to the level of severe or pervasive unlawful harassment. Finally, as to her
job duties, the AJ found that the evidence of record established that the responsibility allegedly
taken, the scheduling of ALJ hearings, was reassigned to a student employee ultimately hired
by the Agency to perform full-time office scheduling responsibilities. The record revealed that

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scheduling was to be the primary responsibility of the office scheduler. The position held by
Complainant, senior case technician, was specialized and required the analysis of cases among
other case management related activities. Scheduling hearings was at best a minor time-
consuming task of a seasoned case technician. Thus, the AJ concluded that there was no
evidence that unlawful discrimination or reprisal motivated the Agency’s decision to hire an
office scheduler.

The AJ found that Complainant had not been subjected to discrimination, reprisal, or a hostile
work environment as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. Complainant filed the instant appeal without submitting any
arguments or contentions in support.

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 a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on her protected classes,
she was discriminated against and subjected to a hostile work environment as evidenced by

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multiple incidents. 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. The record reflects that the alleged incidents were more likely the result of
routine supervision, personality conflicts, and general workplace disputes and tribulations.
The Commission notes that there is evidence that S1 had some personality conflicts with
Complainant and other employees. The Commission notes that Title VII is not a civility code.
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).

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. For example, as to the lunch room incident, S1
explained that there was an established office lunch break schedule and that an employee
needed to inform management prior to making any changes. ROI, Ex. 7, at 2. S1 denied
scolding Complainant; rather, she simply asked Complainant if she was taking her lunch
outside of her scheduled time. Id. At least one other co-worker described being involved in a
similar incident with S1. ROI, Ex. 9, at 3. Complainant reported the incident to S2, who
instructed Complainant that this matter needed to be worked out with S1, her first-level
supervisor. ROI, Ex. 6, at 2-3. Complainant was not disciplined for the incident.

As to the “gossip” incident, S1 denied making the comment. ROI, Ex. 7, at 3. No witnesses
corroborated hearing S1 make the comment. Finally, with regard to her duties, S1 denied
taking Complainant’s duties away and giving them away to younger employees. S1 stated that
the Agency hired an office scheduler who mostly handled the hearing docket. Id. at 5. While
Complainant performed scheduling duties in the past, the Agency decided to hire a full-time
scheduler, and Complainant continued to perform the full-range of her senior case technician
duties. Id.

The Commission finds that Complainant has not proffered any evidence from which a
reasonable fact finder could conclude that the Agency's explanation was a 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, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the Agency's final order, because the Equal
Employment Opportunity Commission Administrative Judge’s issuance of summary judgment
was appropriate and a preponderance of the record evidence does not establish that
discrimination occurred.

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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.

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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

June 3, 2016
Date