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

Equal Employment Opportunity Commission

Jun 28, 2021

Appeal No. 2020003480 (E.E.O.C. Jun. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elenore F.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020003480 Agency No. ATL-19-0419-SSA DECISION On May 18, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 23, 2020 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 period at issue, Complainant worked as a Customer Service Representative (CRS) at the Agency’s SSA Field Office in Florence, Alabama. On May 22, 2019, Complainant filed a formal EEO complaint alleging the Agency discriminated against her based on race (African American), sex (female), and disability when: 1. on January 23, 2019, management required her to enter wages for Title II claims; 2. on February 9, 2019, management denied her overtime; 3. on February 11, 2019, management denied Complainant’s leave request and charged her Absent Without Leave (AWOL); 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. 2020003480 2 4. on February 11, 2019, management did not respond to Complainant’s request that management amend her performance appraisal; 5. she claimed that the Agency engaged in per se reprisal when her manager paced outside the room where she and an EEO Counselor were conducting an interview regarding the instant EEO complaint, allegedly in an effort to intimidate her; 6. on August 16, 2019, she received a lower monetary award than her white male colleagues; 7. on April 20, 2019, management belatedly responded to her request for Family and Medical Leave Act (FMLA) leave that she had initially submitted in 2018; 8. the Agency unreasonably delayed providing Complainant a reasonable accommodation based on disability since February 19, 2019, regarding her request for an air purifier; and 9. beginning on January 23, 2019, in terms of additional workloads, inappropriate management behavior, favoritism displayed towards male employees and employees of other races, reasonable accommodation and FMLA requests, AWOL charges, and promotional opportunities for males. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). On March 20, 2020, the AJ scheduled an Order Scheduling the Initial Teleconference for April 3, 2020. This Order outlined all sanctions which could be issued for failure to follow the Order. On April 3, 2020, the initial teleconference was held. However, Complainant did not call into the teleconference and had not notified the AJ she would not be calling in. The AJ then issued a Show Cause Order on April 3, 2020, requiring Complainant to show Good Cause why she would not be attending. On April 17, 2020, the AJ issued “Decision and Order of Dismissal” in which she determined that Complainant had not shown good cause for missing the April 3, 2020 initial teleconference. Subsequently, the AJ dismissed Complainant’s hearing request and remanded the complaint to the Agency for a final decision. On September 3, 2019, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no unlawful discrimination. 2020003480 3 ANALYSIS AND FINDINGS Prior to addressing the individual claims, we note that Complainant argues on appeal that the AJ improperly dismissed the hearing request due to Complainant’s failure to appear at an initial teleconference on April 3, 2020. We have reviewed Complainant’s appellate argument on this issue, the Agency’s response, and the determination of the AJ. We determine that the AJ was well within her discretion in dismissing the hearing request and find no impropriety in her actions of doing so. Disparate Treatment: Claims 1 -2 and 4 - 7 A claim of disparate treatment is examined under the three-party 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, as here, 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). Based on the evidence developed during the investigation of the complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. During the relevant period, Complainant worked as a Customer Service Representative at the Agency’s SSA Field Office in Florence, Alabama. The Operations Supervisor was Complainant’s supervisor (S1) and the Assistant District Manager was Complainant’s second- line supervisor. The District Manager was Complainant’s third-line supervisor. 2020003480 4 Regarding claim 1, Complainant asserted that on January 23, 2019, management required her to enter wages for Title II claims. The Operations Supervisor (Caucasian, male) stated at that time, none of the CSRs were required to continue keying in Title VII, and in January 2019, management started assigning this workload back to the Title VII Claim Specialists. The supervisor noted that the Agency action was merely a change in the manner in which distributed the work when it came into the office. Regarding claim 2, Complainant alleged that management denied her overtime on February 9, 2019, and the supervisor made a reference to her co-worker having twins as a reason to work overtime. However, the supervisor asserted that overtime was not offered to anyone in the office. He explained overtime was initially offered but there was a last-minute change in management availability. As a result, overtime was cancelled. The supervisor denied allowing Complainant’s co-worker to work overtime. Regarding claim 4, Complainant claimed that on February 11, 2019, management failed to respond to her request to amend her performance appraisal. The supervisor stated that he was not aware of Complainant’s request to amend her appraisal. He stated that Complainant received a “Fully Successful” rating and the information that she submitted did not demonstrate that she had done anything to go above and beyond to receive a higher rating. The Assistant District Manager (Caucasian, female), also Complainant’s second-line supervisor (S2), stated that Complainant went to see her and the District Manager after her appraisal was issued in October/November 2018 and she indicated that the supervisor did not fully address her contributions. S2 told Complainant to put the information down on paper for the supervisor to reconsider. She noted there was a lengthy period of time between their conversation and when the information was submitted to the supervisor. S2 noted that the information Complainant submitted was not considered to be at the Level 5 rating and the supervisor still considered her contributions to be at Level 3. so her rating was not changed. Regarding claim 5, Complainant claimed that the Agency engaged in per se reprisal when her manager paced outside the room where she and an EEO Counselor were conducting an interview regarding the instant EEO complaint, allegedly in an effort to intimidate her. S2 asserted that she was not outside the room while Complainant was interviewing. She noted that the private interview room where Complainant held the telephone interview was in the path to the employee restroom and break room, so it is possible that an Agency management official walked by during that time. The supervisor asserted that there was no manager outside the private interview room. He acknowledged that Complainant may have seen him walk past the room once or twice going to the restroom or break room but he was not pacing outside the room. The District Manager (African American, male) stated that he could have passed by the door to the breakroom and/or bathroom. However, he does not recall passing that room and “definitely, I did not pace outside the room.” Although there were others at the meeting in question, 2020003480 5 Complainant has not produced evidence to rebut the supervisor’s denials. As such, we conclude that the evidence is, at best, in equipoise and Complainant has failed to meet her ultimate burden of proving unlawful discrimination occurred. Regarding claim 6, Complainant alleged that on August 16, 2019, she received a lower monetary award than her white male colleagues. S2 stated that in regard to Complainant’s claim that Caucasian males received higher awards than Complainant, she explained that two identified Caucasian males received higher performance appraisals of 4.5, and they were both qualified for a ROC award of approximately $950.2 Furthermore, S2 stated that Complainant received $400. Reasonable Accommodation: Claims 7 and 8 Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Here, Complainant identified her disabilities as knees, back, severe allergies, migraines and arthritis allergies. The Commission will assume for purposes of analysis only, and without so deciding, that Complainant is an individual with a disability. Complainant claimed that on April 20, 2019, management belatedly responded to her request FMLA leave that she had initially submitted in 2018. The supervisor noted that Complainant’s request was made in August 2018 and was notified by S2 that the form was received and if she needed anything to let them know. The record contains a copy of the supervisor’s memorandum dated February 26, 2019 to Complainant, in which he approved Complainant’s use of LWOP under FMLA effective August 10, 2018 for absences directly related to her condition as described by her doctor. S1 also notified Complainant that this approval would remain in effect until August 10, 2019. Further, Complainant claimed management denied her request for a reasonable accommodation for a new printer and air purifier. A careful review of the record indicates that management was in contact with Complainant trying to meet her needs. The supervisor noted that in or around February 2019, Complainant had problems with her previous purifier and was seeking a repair or replacement. The supervisor noted that Complainant submitted a request through the Reasonable Accommodation (RA) Wizard as well as a request for an air purifier. The supervisor stated that Complainant’s request for a new purifier did not warrant an additional RA request so it was dismissed. He stated, however, Complainant was granted an air purifier which she received around mid-February 2019. 2 The record reflects that a ROC Award is based on individual performance and contributions to the Agency’s mission during the most recently completed appraisal period. 2020003480 6 In sum, the evidence supports a finding that the Agency provided Complainant with an air purifier which was approved. As such, she has not proven a violation of the Rehabilitation Act with respect to the accommodation issue. Harassment Harassment of an employee that would not occur but for the employee’s race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). 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 her protected bases -- in this case, race, sex and disability. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents occurred as alleged by Complainant and/or occurred because of her race, sex and disability. Complainant claimed that she was subjected to harassment since January 2019 regarding additional workloads and favoritism towards male employees of other races. The District Manager stated that he had not observed any harassment and/or favoritism toward male employees and employees of other races. He noted that in February 2019, an independent team conducted an investigation to determine if harassment exist in the Florence, Alabama SSA Field Office. The investigation, conducted between February and April 2019, resulted in a finding that no harassment or favoritism was uncovered. Regarding claim 3, Complainant alleged that on February 11, 2019, management denied Complainant’s leave request and charged her AWOL. However, the supervisor noted Complainant showed up to work on February 11, 2019, shortly after 7:00 a.m. and requested EEO time from 8:30 a.m. to 10:00 a.m. The supervisor explained to Complainant that he could grant her request for up to 9:00 a.m. due to operational needs. Complainant then left work without saying anything to management. The supervisor stated that Complainant’s request for leave was denied, but that Complainant chose to leave anyway. He noted that her decision to leave work “negatively” impacted the operations of the office, customers, and other employees. The District Manager stated that he was aware of the February 11, 2019 incident, in which Complainant chose to leave the building and did not return until 45 minutes after departure which was the reason she was charged AWOL. He further noted that Complainant left the building after her supervisor told her he could not approve it due to operational needs in serving the Agency’s customers. 2020003480 7 In sum, we conclude Complainant has simply provided inadequate evidence to support her claim that her treatment was the result of her race, sex, or disability. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 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. 2020003480 8 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. 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 28, 2021 Date