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

Equal Employment Opportunity Commission

Feb 16, 2021

Appeal No. 2020002750 (E.E.O.C. Feb. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Byron P.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020002750 Hearing Nos. 520-2019-00669X 520-2019-00885X Agency Nos. NY-19-0255-SSA NY-19-0533-SSA DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order, dated January 23, 2020, which adopted an Equal Employment Opportunity Commission Administrative Judge’s decision, dated January 13, 2020, to dismiss his consolidated complaints of unlawful 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. Upon review, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to his complaints, Complainant worked as a Claims Insurance Specialist, GS-105-11, in the East Bronx District Office where he has worked for over 41 years. In March 2019, and May 2019, Complainant filed EEO complaints alleging that he was discriminated against based on sex (male), age (over 40), religion (Jewish), and reprisal (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. 2020002750 2 (1) on November 29, 2018, he was berated by management in the reception area, and denied a rebuttal to an unfavorable performance quality review (PQR). (2) on December 3, 2018, he was given an oral warning by management because he objected to his denial of his PQR rebuttal. (3) on April 18 and 19, 2019, he was unable to use his previously approved leave request for religious observance (Passover) as a result of his suspension. (4) on February 25, 2019, he learned he did not receive a Recognition of Contribution (ROC) award for his overall 4.0 rating on his FY 2018 Performance Appraisal. At the conclusion of the investigation, the Agency provided Complainant with a copy of the reports of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing on the consolidated complaints. The Agency filed a Motion to Dismiss the complaints. The Agency maintained that each allegation should be dismissed on the grounds that Complainant failed to state a claim because he did not show that he was aggrieved. Complainant opposed the Agency’s motion. The AJ assigned to the case granted the Agency’s motion and issued a decision dismissing the complaints. The AJ found that: [a]ll four claims must be dismissed because Complainant cannot meet the standard for an aggrieved employee. In some instances, the conduct alleged amounted to a slight or an annoyance, which is not actionable as it does not render the Complainant aggrieved. Others concern disputes over work assignments, leave, awards, etc., which are insufficient to render Complainant aggrieved. As noted above, the Agency subsequently issued a final order adopting the AJ’s decision. This appeal followed. With respect to allegations 1 and 2, the record indicates that on November 8, 2018, Complainant underwent a PQR by a Claims Technical Expert. Complainant received an unfavorable assessment, which cited him for failing to develop proof of age properly. On November 28, 2018, Complainant submitted a rebuttal to his unfavorable PQR where he argued that the Claims Technical Expert was mistaken and that he committed no errors on the claim. On November 29, 2018, after reviewing Complainant’s rebuttal, S1, his supervisor, made a final determination that Complainant’s interpretation of the claim was incorrect, and that the unfavorable PQR would stand. That same day, Complainant stated that he was sitting in the reception area, when S1, approached him and asked if he was available to speak with her. S1 wanted to discuss her final determination regarding the PQR. At that moment, Complainant declined but they met later that day in S1’s cubicle. 2020002750 3 Complainant and S1 have differing accounts of their discussion. According to Complainant he was berated by S1. S1 stated, however, that: I conducted a private Performance Quality Review rebuttal discussion on November 29, 2018 with the complainant in my cubicle. I reviewed the policy with the complainant and discussed my final determination. While I was reviewing the policy, he stood up, clenched his fists at his side, and yelled that it was not his fault that I do not know how to read English. He repeated that I do not know how to read English. He continued screaming saying just because I think the earth is flat and still moves doesn’t mean it’s right. In a low voice, I asked [Complainant] to lower his voice and stop insulting me. He kept screaming that I did not know how to read English. In a raised voice, he continued telling me I do not know how to read English. I ended the conversation.2 S1, the District Manager, S2, and a nearby witness, W1, each stated that Complainant’s behavior and conduct during his meeting with S1 in her cubicle was insulting, unprofessional, and amounted to conduct unbecoming of a Federal employee. On December 3, 2018, S2 met with Complainant in her office to discuss the incidents with S1. S2 stated that Complainant became upset and screamed at her, “This is how I am, you just want to get rid of me!” Complainant denied screaming at S2. He maintained that he was given an oral warning during this December 3, 2018 meeting, but S2 stated that she did not issue Complainant any warning. The AJ found that Complainant failed to show how his encounter with S1 on November 29, 2018, constituted berating conduct; nor did he establish that he suffered a loss or harm to a term, condition, or privilege of his employment. Moreover, the AJ found that, regarding Complainant’s allegation that he was denied an opportunity to rebut his PQR, the record clearly shows that he was given such an opportunity. Thus, the AJ found that this issue also failed to state a claim. Complainant, the AJ noted, “admitted in his affidavit that he was not denied the opportunity to object to the review.” With respect to allegation 2, the AJ found that, even taken as true, Complainant’s December 3, 2018, meeting with S2 failed to state a claim. Regarding allegation 3, the record indicates that Complainant was initially approved in early 2019, to take leave for religious compensatory time on April 18 and 19, 2019, for the observance of Passover, but management later denied the request. 2 According to the Agency, Management subsequently asked a regional technical expert to also review the PQR determination, and that expert agreed that Complainant’s unfavorable PQR should stand, and that Complainant was properly cited because he failed to code systems screen appropriately and did not properly document a claimant’s citizenship. 2020002750 4 On February 8, 2019, Complainant was notified that the Agency proposed to suspend him for twenty days for conduct unbecoming a federal employee in connection with his conduct on November 28 and 29, 2018, and December 3, 2018. On March 28, 2019, the decision to suspend Complainant was sustained, and he was suspended for twenty days beginning on April 3, 2019 and continuing until April 22, 2019. Complainant’s suspension took place during the period in which he was scheduled to take leave for the religious observance. To avoid Complainant losing the accrued religious compensatory time, management and Complainant agreed that he would use the accrued leave time on June 3, 2019, and on September 30, 2019. Although noting Complainant’s contention that he was denied the ability to celebrate Passover, and that the Agency purposefully timed the suspension to include the dates of Passover, the AJ found that the evidence did not support these assertions and that the arguments were speculative. He also noted that Complainant was able to celebrate Passover because he did not report to work during his suspension. Finally, the AJ noted that upon his return to work, Complainant’s accrued religious leave time remained intact, and he used it on June 3, 2019, and September 30, 2019. Regarding allegation 4, the AJ found that Complainant’s claim of discrimination due to his non- receipt of a ROC award should be dismissed for failure to state a claim, because Complainant undisputedly had disciplinary actions against him that adversely affected his eligibility for the award. Specifically, the AJ noted that although Complainant argued that he received a 4.0 on his performance appraisal, which made him eligible for an award, he was suspended twice before the issuance of the ROC award. The AJ noted that the Collective Bargaining Agreement made clear that to qualify for a ROC award, an employee had to satisfy two requirements, i.e., the employee must have received an appraisal score of at least a 4.0 and must be in good standing. Complainant submitted no argument on appeal. ANALYSIS AND FINDINGS 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). 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). In determining whether a harassment complaint states a claim in cases where a complainant had not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission has repeatedly examined whether a complainant’s harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work 2020002750 5 environment claim. See Estate of Routson v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (February 26, 1999). Consistent with the Commission's policy and practice of determining whether a complainant’s harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (February 16, 1995). Also, the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions that can be challenged are not restricted to those which affect a term, condition, or privilege of employment. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter . . . complainant or others from engaging in protected activity.” Maclin v. U.S. Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007). Allegations 1 and 2 Regarding allegation 1, we find that the actions complained of, Complainant’s contention that he was “berated” by S1 on November 29, 2018, even if true, were neither sufficiently severe nor pervasive to create a discriminatory hostile or abusive working environment. As noted above, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not enough to state a harassment claim. Furthermore, Complainant has not challenged the definition of claim 1 (or the complaint) on appeal and has not shown how he was harmed by the alleged error in PQR. Regarding allegation 2, we find that Complainant failed to show how he was harmed by the purported “oral warning”. Furthermore, to the extent that Complainant is claiming he was subjected to a hostile work environment, we do not find that the claims in this complaint, when considered together, are sufficiently severe so as constitute a hostile work environment. Furthermore, the claims in the complaint, when taken together, or considered individually (apart from claim 4), are insufficient to reasonably likely deter an individual from engaging in EEO activity. Accordingly, we AFFIRM the Agency’s final order dismissing allegation 1 and 2. Allegation 3 Regarding allegation 3, Complainant has not claimed that he was unable to celebrate Passover because he had to work or that he had to take unpaid leave. Rather, the Agency states, and Complainant agrees, that he was suspended during the relevant religious holiday time. Therefore, Complainant has not shown that he was actually denied any requested leave. Accordingly, we AFFIRM the Agency’s final order dismissing allegation 3. 2020002750 6 Allegation 4 The only questions for an agency to consider in determining whether a complaint states a claim are: (1) whether complainant is an aggrieved employee; and (2) whether complainant raises employment discrimination on a basis covered by EEO statutes. If these questions are answered in the affirmative, an agency must accept the complaint for processing regardless of its judgment of the merits. See Odoski v. Dep’t of Energy, EEOC Appeal No. 01901496 (April 16, 1990). We find that the AJ improperly dismissed allegation 4 for failure to state a claim. The AJ found that Complainant, due to prior disciplinary actions, was not in good standing and therefore did not meet the eligibility requirements for a ROC award. We find that this reason goes to the merits of Complainant’s allegation and is irrelevant to the procedural issue of whether he has stated a justiciable claim. See Desanto v. Dep’t of Homeland Sec., EEOC Appeal No. 0120123497 (Jan 31, 2013). Although we find that allegation 4 was improperly dismissed, we find that there is sufficient evidence in the record to decide this claim without a hearing. The Agency argues that under the collective bargaining agreement (CBA), Complainant was not eligible to receive the ROC award (because of his discipline). Complainant argues the CBA allows for an exception. We have no need to decide if Complainant’s interpretation of the CBA is correct. We find that there is no evidence that the Agency ever interpreted the CBA differently than it was interpreted in this instance. Furthermore, Complainant has not shown that any persons were given an ROC award (or any award) who were not in his protected categories, yet were not in good standing because of prior discipline. Therefore, we find that Complainant failed to show that the Agency’s reason for denying the award was a pretext for discrimination. We find that Complainant failed to show by a preponderance of the evidence that the Agency’s action in allegation 4 was motivated by discrimination or reprisal. CONCLUSION Accordingly, the Agency’s decision is AFFIRMED for the reasons stated in this decision. 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. 2020002750 7 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. 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. 2020002750 8 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 February 16, 2021 Date