[Redacted], Antony Z., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 27, 2021

Appeal No. 2021003279 (E.E.O.C. Sep. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Antony Z.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2021003279 Agency No. HQ-20-0514-SSA DECISION On May 18, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 13, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant worked as a Legal Administrative Specialist/Hearing Customer Service Specialist, GS-9, at the Agency’s National Hearing Center (NHC) in Albuquerque, New Mexico. On May 19, 2020, Complainant filed a formal EEO complaint alleging the Agency discriminated against him based on sex (male), disability, and in reprisal for prior protected EEO activity when: 1. on February 20, 2020, management issued Complainant a proposal to suspend; 2. on April 3, 2020, management issued Complainant a 2-day decision to suspend; 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. 2021003279 2 3. on April 2, 2020, management assigned Complainant as a hearing reporter, along with other duties, and he was not given any breaks; and 4. beginning April 2019 and continuing, management assigned Complainant additional work assignments, suspended him, bullied him, micromanaged him, failed to respond to his emails pertaining to work assignments, and caused anxiety and depression for Complainant and his family. After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. In its April 13, 2021 final decision, the Agency found no discrimination was established based on the evidence developed during the investigation. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment 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). 2021003279 3 As an initial matter, Complainant identified his disabilities as Post-Traumatic Stress Disorder, night terrors, anxiety, high blood pressure, asthma, high cholesterol, depression, lumbar facet syndrome, Degenerative Disk Disease with Transitional Disc Syndrome, Anterior Cervical Fusion, Hip Dysplasia Bilateral with Coxa Magna, Femoracetabular Impingement, Osteoarthritis of left hip, enlarged femoral heads and Pes Plan. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability as defined by the Rehabilitation Act. Here, we find that the responsible Agency official articulated legitimate, non-discriminatory reasons for the disputed actions as detailed below. Regarding claims 1 and 2, Complainant asserted that on February 20, 2020, management issued Complainant a proposal to suspend and, on April 3, 2020, management finalized the action by issuing Complainant a 2-day decision to suspend. The Supervisory Case Manager, also Complainant’s supervisor (S1) (female) stated that she proposed a 2-day suspension based on Complainant’s violation of the Agency’s email policy in which he failed to safeguard Personally Identifiable Information (PII). Specifically, S1 stated that on December 26, 2019, Complainant forwarded an email which S1 sent him which contained PII, to an outside email address. She stated that Complainant noticed a pop-up on his computer warning about the PII, but he still decided to send the document. S1 stated that she also learned that Complainant had a prior violation of the Agency’s policy involving the misuse of email. Furthermore, S1 stated that Complainant was aware of the Agency’s policies as he read and signed each policy acknowledgement form. Moreover, S1 stated that she learned that Complainant had two additional PII offenses on April 22 and 23, 2020, which occurred after his counseling, reprimand, and suspension. She stated that she reviewed the material and provided Complainant verbal counseling. S1 expressed her concerns about the amount of PII Complainant continues to release “as well as his lack of consideration for agency policy and claimant safety.” The Administrative Officer, also Complainant’s second-line supervisor (S2) (female), stated that she was the concurring official. After a review of the conduct described in the proposed 2-day suspension and Complainant’s response, sustained the charge and implemented the proposed 2- day suspension. Regarding claim 3, Complainant alleged that on April 2, 2020, management assigned him as a hearing reporter, along with other duties, and he was not given any breaks. S1 stated that during the relevant period frequent hearing reporting assignments were given to all legal assistants and Hearings Customer Service Specialists (HCSSs) with short notice, due to the pandemic and loss of contracted hearing reporters. S1 noted that on April 2, 2020, Complainant signed in for work at 6:00 a.m. and was not scheduled to hearing report until 9:30 a.m. S1 stated that this three-and-one-half hour gap provided ample time for a morning break. 2021003279 4 In addition, S1 noted that Complainant did not report any loss of break time until his day had ended. She stated that it was an employee’s duty to notify management if the employee has not received a break. S1 asserted that Complainant received the same consideration and opportunities for breaks as his co-workers, and that he had not informed 21 of the necessity for a break, until it was too late for S1 to provide him one. S2 explained just after the COVID pandemic began, the office went into full telework schedule. She stated that management began a new process of telephonic hearings. As of April 2, 2020, management was fairly new to the process and initially made schedules for all staff employees. S2 noted that S1 notified her some of the employees were being scheduled too many hearings in one day and breaks were becoming a problem. As a result, S2 stated that management revised the whole process and “we worked towards many of our support staff only completing 2-3 hearings per day in most instances.” Further, S2 stated that the Agency authorizes one 15-minute break in the morning and a 15-minute break in the afternoon, but with supervisor approval additional breaks were allowed pursuant to a reasonable accommodation request. Complainant failed to prove, by a preponderance of the evidence, that the legitimate reasons proffered by management witnesses for the disputed actions were a pretext designed to mask discrimination based on his sex or disability or unlawful retaliation. Harassment To prove her 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 a protected basis - in this case, his sex, disability or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Regarding claim 4, Complainant asserted that the Agency subjected him to harassment beginning in April 2019 and continuing, management assigned him additional work assignments, suspended him, bullied him, micromanaged him, failed to respond to his emails pertaining to work assignments, and caused anxiety for him and his family. S1 denied Complainant’s allegations. S1 stated that all HCSSs have the same core duties and expectations which are provided to them at the time of the position description change. In addition to the core duties, all HCSS’s are responsible for assigned administrative tasks. In addition, S1 stated that of all three HCSS’s in the Albuquerque, NHC, Complainant has the least amount of duties and in addition, his specific duties have extended benchmarks (for example 30 days) while the other employees are working with administrative documents that require 10-day processing and involve issuing direct payments to vendors or submitting to the office of finance. 2021003279 5 Furthermore, S1 stated that in April 2019, Complainant received an official reprimand for conduct unbecoming of a federal employees. She noted that Complainant’s actions caused multiple employees to report they felt threatened by Complainant which caused a disruption in the workplace. S1 asserted that Complainant has never been micromanaged. She acknowledged when she routinely asks Complainant to perform regular job duties or inquire about a discrepancy, he immediately states that he is being micromanaged. In sum, Complainant either failed to prove the events supporting his harassment claim occurred as alleged or, if the matters occurred, that his sex, disability or prior EEO activity played any role in management’s actions. His claim of harassment is precluded based on our findings that Complainant failed to establish that the action taken by management was motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2021003279 6 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. The court has the sole discretion to grant or deny these types of requests. 2021003279 7 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 September 27, 2021 Date