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

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2021001704 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carly O.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2021001704 Agency No. BOS-20-0074-SSA DECISION On January 4, 2021, 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 December 2, 2020 final decision 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., 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 At the time of events giving rise to this complaint, Complainant worked as a Hearings Customer Service Representative, GS-8, at the Agency’s Office of Hearings in New Haven, Connecticut. On February 4, 2020, Complainant filed an EEO complaint alleging that the Agency subjected her to (1) harassment on the bases of race (Black), disability (mental and physical), age, and reprisal for prior protected EEO activity, from October 7, 2019 to November 25, 2019, regarding working conditions, performance, and termination; and (2) discrimination on the bases of race, disability, age, and reprisal for prior protected EEO activity when, on November 25, 2019, her employment was terminated. 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. 2021001704 2 The Agency dismissed the claim (2) pursuant to 29 C.F.R. § 1614.107(a)(4), finding that she had pursued the matter in a negotiated grievance proceeding. It accepted claim (1) and conducted an investigation, which produced the following pertinent facts: Complainant did not provide testimony during the investigation. In her formal complaint, she alleged that she had been harassed and discriminated against for the last ten years. Her allegations included that she had been yelled at, followed down the hallway and told to get off her phone and that she was not allowed to be on her phone during the workday, and told that she did not know how to do her job. The EEO Counselor’s report indicates that Complainant believed that management was attempting to remove her because of her age. It also indicates that Complainant stated that her disabilities have a lot to do with the charges against her in the separation notice. It also indicates that she had many pending EEO complaints and the separation was in retaliation for these complaints. She also alleged that management had removed other Black people because they were outspoken and favors people who are not Black. Complainant’s first- and second-level supervisors (Supervisor1 and Supervisor2) attested that they were aware of Complainant’s disabilities and prior EEO activity. Supervisor1 and Supervisor2 also attested to Complainant’s allegations. They denied subjecting Complainant to harassment in terms of her working conditions, including yelling at her, telling her that she could not be on her phone during the workday, or telling her that she did not know how to do her job. They also attested that they did not subject her to harassment in terms of her performance or in terms of termination. Regarding the decision to terminate Complainant, Supervisor1 attested that she gave Complainant the notice to terminate her employment on October 7, 2019 for failure to follow management directives, conduct unbecoming an Agency employee, engaging in disruptive behavior, and failure to follow Agency policy. Supervisor2 attested that she was the Deciding Official on the termination decision. She attested that the decision was based on three charges, including failure to follow management directives to complete multiple workload assignments and attend supplemental training; conduct unbecoming an Agency employee, including abruptly hanging up the phone on Supervisor1 while she was discussing Complainant’s sick leave request and three incidents of unprofessional and disrespectful email responses from Complainant; and failure to safeguard personally identifiable information (PII), including three emails containing claimant names and social security numbers. An October 7, 2019 Notice of Proposed Removal from Supervisor1 to Complainant indicates that Complainant was charged with failure to follow management directives, with three noted specifications; conduct unbecoming an Agency employee, with four noted specifications; and failure to safeguard PII, with three noted specifications. 2021001704 3 A November 25, 2019 Decision to Remove from Federal Service from Supervisor2 to Complainant indicates that all charges in the Notice of Proposed Removal were sustained. It indicates, with respect to failure to follow management directives, that, in May 2019, Complainant failed to complete a list of her pending assignments by their deadlines; in August 2019, Complainant failed to request records from Disability Determination Services as required by the deadline; and in August 2019, Complainant failed to attend supplemental training. With respect to conduct unbecoming an Agency employee, it indicates that, on May 7, 2019, Complainant hung up on Supervisor1 when Supervisor1 was attempting to explain to her, in reference to her sick leave request, that she did not have any sick leave available and would need to request advanced sick leave and produce medical documentation; on May 14, 2019, Complainant responded to an email from Supervisor1 directing her to complete an assignment in a manner questioning Supervisor1’s time management skills and the appropriateness of the assignment; and on August 23, 2019, Complainant emailed Supervisor1 indicating that she refused to attend supplemental training given by a co-worker as directed; and on September 23, 2019, Complainant emailed Supervisor1 asking for an update on her request for a private office because she has music that she wants to listen to and was “tired of listening to the Spanish speaking.” With respect to failure to safeguard PII, it details three instances in August 2019 when Complainant emailed claimant information from her Agency-issued computer to her personal, unsecured email account. The Decision to Remove from Federal Service also indicates that, in deciding to implement the Notice of Proposed Removal, several factors were considered, including the seriousness of the violations and their relation to Complainant’s job duties, position, and responsibilities; her position in the organization; her past disciplinary record; her past record; the effect of the conduct on her ability to perform the duties of the position and supervisors’ confidence in her ability to perform the assigned duties; the consistency of penalty; the consistency of penalty with the table of penalties; the notoriety of the offense; her awareness of any rules that were violated in committing the offense; the potential for her rehabilitation; mitigating factors; and the adequacy and effectiveness of alternative sanctions. A December 16, 2019 letter from the Union to the Regional Chief Administrative Law Judge indicates that Complainant was filing a Step 3 Grievance relating to the Decision to Remove Complainant from Federal Service. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 her to discrimination as alleged. 2021001704 4 The instant appeal followed. On appeal, Complainant details her personal background prior to her employment with the Agency and her perspective of the atmosphere at the Agency. She also submits copies of medical and other records and communications regarding her disability, copies of emails, names of witnesses and supporting statements, and documents relating to a previously filed EEO complaint. In response, the Agency argues that it did not subject Complainant to harassment. It asserts that Complainant cannot prove that the issuance of the Notice of Proposed Removal and Decision to Remove from Federal Service were in any way were related to her age, race, disability, or protected EEO activity. It asserts that Complainant was removed for misconduct and not because of any protected class status and asks that we affirm its final decision. ANALYSIS AND FINDINGS Standard of Review 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”). Dismissed Claim EEOC Regulation 29 C.F.R. § 1614.107(a)(4) provides, in pertinent part, that the Agency shall dismiss a complaint when the complainant has raised the matter in a negotiated grievance procedure that permits allegations of discrimination or in an appeal to the Merit Systems Protection Board and § 1614.301 or § 1614.302 indicates that the complainant has elected to pursue the non-EEO process. Here, the Agency dismissed claim (2), alleging the Agency discriminated against Complainant in issuing its Decision to Remove from Federal Service. The record shows that Complainant is a member of a bargaining unit covered by a Union agreement permitting allegations of discrimination and, on December 16, 2019, prior to filing her February 2020 EEO complaint, she filed a grievance under the negotiated grievance procedures regarding the Agency’s Decision to Remove from Federal Service. Therefore, we find that this claim was properly dismissed. 2021001704 5 Harassment Claim To establish a claim of hostile environment harassment, 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 Agency. 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). In other words, 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 -- in this case, her race, disability, age, or prior protected EEO activity. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Complainant's allegations can generally be described as relating to managerial decisions, such as policies regarding personal phone calls during the workday, matters of employee supervision, and removal, or being spoken to in a way Complainant found unpleasant. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). Although Complainant has alleged the Agency acted with a discriminatory and/or retaliatory intent, the record is insufficient to establish that the incidents at issue were because of her race, disability, age, or prior protected EEO activity. Therefore, we find she has failed to establish her claim of discriminatory harassment. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2021001704 6 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 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). 2021001704 7 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. 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 14, 2021 Date