[Redacted], Delfina Y., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jul 22, 2021

Appeal No. 2020003252 (E.E.O.C. Jul. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Delfina Y.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2020003252 Hearing No. 490-2020-00046 Agency No. ATL-19-0724-SSA DECISION On April 27, 2020, 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 April 24, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to discrimination and a hostile work environment based on her sex and national origin. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Service Representative, GS-07, at the Agency’s Field Office in Madison, Tennessee. 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. 2020003252 2 On June 26, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of national origin (Hispanic) and sex (female) when: 1. on May 9, 2019, management did not approve Complainant’s premium pay request for May 13, 2019 and May 14, 2019 in a timely manner; and 2. from April 1, 2019 and onwards, the Agency subjected Complainant to harassment in terms of working conditions and time and attendance. The investigative record reflects the following pertinent matters relating to the subject claims.2 Claim 1 On May 9, 2019, Complainant submitted a credit request for May 13, 2019 and May 14, 2019. Complainant’s immediate supervisor, the Assistant District Manager, (RMO31) (Caucasian4, male) was not available to immediately approve the request in the system. Complainant stated that the only available supervisor at the time was the Operations Supervisor (RMO2) (Black, female). RMO2 is not in Complainant’s line of supervision. Complainant stated that she asked RMO2 to approve her request because she was not sure when RMO1 would return or why her request had not been approved earlier. RMO2 would not approve her request in the system and told her that as long it was approved before timesheet validation, it would be fine. Complainant stated that her request was not approved in the system until May 16, 2019, which she said was out of the ordinary as management generally approved requests quickly. RMO1, however, stated that a verbal approval is the same as an approval in the system. RMO1 stated that RMO2 gave Complainant verbal approval. Moreover, Complainant worked the requested time and was given the credit. RMO1 also indicated that there was no delay in processing Complainant's timesheet and pay. Complainant did not disagree that she was able to work the time she requested and that her timesheet was processed on time. 2 On appeal, Complainant uploaded a password locked document. Upon contact, Complainant provided a password, which was not accurate. Complainant could not recall the password to said document. 3 Responsible Management Official (RMO). 4 Management officials were asked to identify his/her national origin and responded with racial classifications instead. 2020003252 3 Claim 2 In claim 2, Complainant alleged that she had been subjected to harassment. In support of her claim, Complainant alleged a series of events. Complainant stated that, as the only service representative in the office, all the work is being assigned to her and she has limited assistance. She stated that management asked her to provide refresher training to staff and that management continued giving her checks to process every day, even though she has trained the rest of the office, per management’s request, on how to do this task. RMO1 stated that Complainant never expressed issues with her working conditions to him. He also stated that Complainant’s working conditions are the same as everyone else in the office. RMO2, like RMO1, noted that Complainant is the only Service Representative in the office. RMO2 also stated, however, that having only one Service Representative is normal for an office of their size. Complainant’s second line supervisor, the District Manager (RMO3) (Black, female), stated that Complainant never approached her about being unhappy at work or with any claims of harassment. On April 1, 2019, Complainant was assisting a claimant who became upset with her and wanted her full name. Complainant stated that the claimant threatened her verbally. Complainant provided the claimant with her first name, but not her last name. When the claimant asked to speak to Complainant’s supervisor, Complainant stated that she went to RMO1 and asked him not to provide her full name for safety reasons. Complainant stated that RMO1 said that “if the public asks for your full name I will give it to them.” Complainant also stated that RMO1 asked if she “smiled” and what tone she used when speaking to the claimant. RMO1 stated that he did not ask Complainant whether she smiled or not. He also said that Complainant has a history of being rude with customers. He stated that Complainant only informed him that the claimant had threatened her after he went to try to speak with claimant. RMO1 confirmed that it is office policy to provide full names of employees upon request from the public. RMO3 also confirmed this policy. On May 15, 2019, Complainant went to RMO2's office to ask her a question. Complainant stated that when she entered RMO2’s office, RMO3, who was also in the office at the time, left. Complainant stated that this has happened on several occasions and that RMO3 is not supportive. She also stated that RMO3 told her that she was not selected as a Claims Specialist because of her personality issues. RMO1 and RMO2 stated that they have never witnessed RMO3 walk away from or ignore Complainant. RMO3 also denied this type of behavior. RMO3 indicated that Complainant never addressed concerns regarding their interactions. Complainant stated that she did not bring harassment claims to management's attention because they are hostile and unwilling to listen to complaints. 2020003252 4 Complainant also stated that she is the only Hispanic, Spanish-speaking employee and that management has not hired another Spanish-speaking person, even though there is a need. Complainant said that she has to translate whenever there is a Spanish-speaking customer. She also stated that, because of this linguistic need in the office, she is required to do things that are outside of her job description. RMO1 indicated that management asks employees to use the call-in number for interview translations. He also stated that, while management asks Complainant for help with “brief translations,” she was hired as a bilingual employee. RMO2 stated that Complainant is not the only Spanish speaker and that there are others who translate when Spanish-speaking claimants come into the office and that there is also a toll-free number. Complainant also stated that RMO1 often tries to close the door when speaking to her in his office, which makes her uncomfortable. She stated that RMO1 does not do this to male employees. RMO1 stated that he has had closed door meetings with Complainant and almost everyone else in the office, including male employees. RMO2 stated that she has never seen RMO1 close his door only with female employees and stated that management give staff the option to have privacy during meetings. On May 15, 2019, Complainant stated that she approached RMO2 about a work matter, but RMO2 was in a training room and “shooed” her away. Complainant then approached RMO3, the only other supervisor available, because she needed a second Personal Identification Number (PIN) from a supervisor or higher. Complainant stated that RMO3 would not provide her with a PIN and told her to leave the documentation on RMO2's desk. Complainant stated that RMO3 had the ability to provide her with a PIN but chose not to do so. RMO2 stated that she was in training, which is why she gestured to Complainant to go to another supervisor. RMO2 stated that she did not “shoo” Complainant away. RMO3 stated that she does not provide second PINs because that is a function of the Operations Supervisor. For that reason, RMO3 told Complainant to put the documentation on RMO2's desk, who could provide a second PIN at a later time. 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). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2020003252 5 CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency erred in finding no discrimination. Complainant contends that the decision was biased and that she is subjected to different rules and micromanaged. She states that she has messages showing a delay in response for credit hours and a delay in response from management regarding her work questions. In response, the Agency provides a detailed appellate brief that essentially reiterated the FAD. The Agency asserts that Complainant failed to provide any persuasive appellate arguments for overturning the FAD and requests the Commission to affirm the Agency’s April 24, 2020 FAD. 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”). ANALYSIS AND FINDINGS Disparate Treatment Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n.13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 205 (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. 2020003252 6 Where the agency has articulated a legitimate, nondiscriminatory reason for it actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). Here, even if we assume, arguendo, that Complainant has established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. With respect to claim 1, while Complainant’s credit request was not approved in the system right away, management explained that a verbal approval was the same as an approval in the system, as long as the approval in the system happened before timesheet validation. RMO2, who is not Complainant’s supervisor, explained that she did not approve the credit request because she is not Complainant's supervisor. RMO2 noted that because Complainant had verbal approval, she could work the requested hours and that RMO1 would eventually sign off. Further, RMO1 explained, and Complainant did not contest, that Complainant worked those hours; her timesheet was approved on time; and she was paid for those hours without delay. There is no indication that RMO2 or RMO1 acted with discriminatory or retaliatory animus when they gave Complainant verbal approval and waited to approve her credit request in the system. Complainant also alleged a series of events in claim 2 in which she believed she was treated differently due to her protected bases. Regarding Complainant’s workload, the Agency has provided legitimate, nondiscriminatory reasons. First, RMO1 stated that Complainant was hired specifically as a bilingual employee and is, therefore, asked to help with translations. Moreover, management stated that it is not unusual to have only one Service Representative for an office of their size. Regarding RMO1's closed door conversations with Complainant, RMO1 and RMO2 explained that this is done to give employees privacy and that RMO1 does this with male and female employees alike. Thus, Complainant was not treated in a manner that is different than other employees. Regarding Complainant’s allegations that RMO3 refused to provide her with a second PIN, the Agency explained that RMO3 does not provide second PINs to anyone and that RMO2 was the one who had that power because she is an Operations Supervisor. In this matter, the record demonstrates that RMO3 did not provide a PIN because it was not a function of her job, not because she did not want to help or discriminated against Complainant. Regarding Complainant’s allegations that RMO1 discriminated against her by stating that he would give a claimant her full name, the Agency explained that this was the Agency’s practice will all employees. Thus, RMO1 did not state that he would give the name to discriminate against Complainant, but because it was the Agency’s policy. Moreover, RMO1 noted that Complainant failed to inform him that the claimant was allegedly threatening her, and that if he had known, he would have not provided Complainant’s full name. 2020003252 7 As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business judgments. The reasonableness of the employer’s decisions may be probative of whether it is pretext. Therefore, our analysis focuses on the Agency’s motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of the Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions unless other facts suggest that proscribed considerations or bias entered the decision- making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 1996). In this matter, Complainant argued that the reasons provided by the Agency were false and merely pretext for discrimination. However, Complainant has provided no witness statements or documentary evidence to demonstrate that management was motivated by discriminatory or retaliatory animus. Based on the record, there is no evidence to demonstrate that management’s actions were motivated by such animus. Hostile Work Environment To prove her hostile work environment 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 national origin and sex. Only if Complainant establishes both of those elements- hostility and motive- will the question of Agency liability present itself. Here, Complainant generally alleged that RMO1, RMO2, and RMO3 subjected her to a hostile work environment through a variety of incidents as discussed above. For example, Complainant asserted that RMO3 frequently ignored and walked away from her. Even if this were true, there is no evidence to demonstrate that RMO3’s actions were based on Complainant’s protected classes. We find that under standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mr. 8, 1994). Moreover, a finding of hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As already concluded above, there is no evidence to support a finding that Complainant’s national origin or sex played a role in the Agency’s actions. In sum, Complainant failed to prove that her protected classes played any role in the incidents she proffered as evidence of her harassment claim. 2020003252 8 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s finding of no discrimination. 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. 2020003252 9 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. 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, Director Office of Federal Operations July 22, 2021 Date