[Redacted], Hilda H., 1 Complainant,v.Dr. Kilolo Kijakzai, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 9, 2021

Appeal No. 2020003468 (E.E.O.C. Sep. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hilda H.,1 Complainant, v. Dr. Kilolo Kijakzai, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2020003468 Hearing No. 520-2019-269X Agency No. BOS-18-623-SSA DECISION On May 14, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 17, 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 order. ISSUE PRESENTED The issue presented is whether the Agency subjected Complainant to a hostile work environment based on her race, sex, and protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Assistant District Manager at the Agency’s facility in Holyoke, Massachusetts. On August 10, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment on the bases of her race2 (Hispanic) sex (female), and reprisal 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. 2020003468 2 for prior protected EEO activity when beginning in May 2016, a subordinate employee (Indian, male, unknown EEO activity) (E1) monitored, stalked, and made false accusations about Complainant, and, management failed to respond to this behavior. The investigative record reflects the following pertinent matters relating to the subject claim. Complainant listed the following individuals as responsible management officials (RMO): the District Manager of the Holyoke Field Office (female, Hispanic, unknown EEO activity) (RMO1); the Area Director of Boston, Massachusetts (male, White, unknown EEO activity) (RMO2); the District Manager of the Framingham Field Office (female, White unknown EEO activity) (RMO3); the Deputy Regional Commissioner of the Boston Regional Office (male, White, unknown EEO activity) (RMO4); and, the Regional Commissioner of the Boston Regional Office (female, White, unknown EEO activity) (RMO5). Complainant alleged that a subordinate employee, the Claims Representative/Specialist and office union representative (male, Indian, unknown EEO activity) (E1) harassed her and that management did nothing to address her concerns. Complainant is E1’s second line supervisor since 2013. Complainant detailed, amongst 27 total incidents, that E1 has used his union position to bully, harass, intimidate, stalk, retaliate, and generally create a hostile work environment for her. Regarding the monitoring and stalking, Complainant asserted that for example, E1 had staff monitor her and report back to him; that E1 constantly eavesdrops on her conversations; that E1 requested that Complainant’s leave be placed on the staff leave calendar; and, that E1 monitored Complainant’s usage of the “Do Not Disturb” feature of Skype while she teleworked. RMO4 stated that following Complainant’s concerns, the office assigned an impartial management official, the Harassment Prevention Officer (HPO) (male, White, unknown EEO activity) to investigate. The HPO stated that the investigation was initiated based on an email from the Union President alleging that Complainant was harassing employees. The HPO initiated an investigation but no one chose to come forward with any information and the investigation was closed. The HPO noted that Complainant later accused E1 of harassing her and upon investigating the matter, he recommended that the difficult union/management relationship between Complainant and E1 be addressed. However, he did not find any type of behavior that rose to a harassment-level situation. 2 To the extent that Complainant is claiming “Hispanic” as a race, the Commission has consistently held that “Hispanic” is not a race category or racial classification. The Commission recognizes five racial categories: American Indian or Alaska Native; Asian; Black or African- American; Native Hawaiian or Other Pacific Islander; and White. “Hispanic” is a national origin category. See EEOC, Questions and Answers about Race and Color Discrimination in Employment (rev. Apr. 19, 2006); Medrano v. U.S. Postal Serv., EEOC Request No. 05930569 (Dec. 16, 1993); Salais v. Dep't of the Army, EEOC Appeal No. 0120082383 (Sept. 22, 2008). 2020003468 3 RMO4 also noted that when Complainant alleged that E1 was stalking her, the matter was referred to the HPO, who then referred the matter to the Crisis Advisory Team (CAT). The CAT investigated the situation and did not find that E1 was a threat to Complainant. Regarding the false accusations, Complainant asserted that that E1 made false accusations against her such as: that Complainant sexually harassed employees; wore provocative attire; maintained inappropriate proximity to employees and/or inappropriately touched employees; that she was incompetent in her position; misappropriated Agency funds; that she inappropriately discussed personnel matters; and, that E1 filed a frivolous Office of the Inspector General’s (OIG) Office complaint against her. The Operations Supervisor (female, White, unknown EEO activity) was E1’s first line supervisor (no organizational relationship with Complainant) and stated that the OIG complaint was filed on behalf of a member of the public by E1. The Operations Supervisor noted that she informed Complainant to not worry about the OIG complaint. Additionally, the Operations Supervisor also noted that at no point did she witness anyone attempting to monitor Complainant or find any evidence that E1 had asked others to monitor Complainant. The Area Systems Coordinator (male, Hispanic, unknown EEO activity) stated that in September 2016, Complainant spoke with him regarding an employee’s reasonable accommodation request while he was walking down a public space. E1 happened to be interviewing a member of the public, overheard Complainant’s comment, and informed Complainant that it was inappropriate to discuss sensitive personal employee matters on the floor. The Area Systems Coordinator noted that a tense exchange occurred. The Area Systems Coordinator disagreed with the confrontational manner in which E1 accosted Complainant, but noted that he was right, and that Complainant should not have discussed an employee’s personal matter on the open floor. Regarding management’s response, Complainant asserted that management generally failed to respond in an appropriate fashion. She asserted that management failed to properly follow anti- harassment and Crisis Advisory Team (CAT) policy to protect her rights. Complainant noted that only RMO2 timely addressed the OIG complaint, which was dismissed one day later. Complainant asserted that RMO1 also attempted to separate E1 from her but feels that it was not enough. Complainant asserted that E1 is free to bully, intimidate, and harass her with no consequences. E1 asserted that he has never stalked, asked others to monitor, or generally harassed Complainant. E1 noted that as the Union representative, he has had multiple complaints from other employees about Complainant’s behavior. As a union representative, he brought forth any concerns that were brought to him. He acknowledged that he has called out Complainant for discussing sensitive personnel matters on the open floor. E1 also acknowledged that he filed an OIG complaint based on a complaint from a member of the public. E1 also acknowledged that management has asked that he try to get along with Complainant. 2020003468 4 At the end of the investigation, Complainant was provided with the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing and then subsequently withdrew her request. The AJ remanded the matter for a final Agency decision (FAD). On April 17, 2020, the Agency issued a final order finding that Complainant failed to prove that the Agency subjected her to discrimination or retaliation as alleged. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the Agency improperly truncated Complainant’s allegations into one general claim. Complainant notes that she contested this and requested that the Agency list the entirety of her claims. Complainant states that the Agency never acknowledged her request and continued the processing of her complaint on the one generalized claim. Complainant argues that the entirety of the claims demonstrate that she was subjected to a hostile work environment and that management failed to properly intervene. In response, the Agency asserts that its final Agency decision appropriately determined that while Complainant experienced unwelcomed conduct she failed to establish that any of the conduct, or the Agency’s alleged lack of response, was based on her membership in a protected class, or was severe or pervasive enough to reasonably deter protected EEO activity. The Agency also acknowledges Complainant’s concerns that it did not address each of her numerous claims that she had listed prior. The Agency noted that while it did not address individual claims, it had appropriately addressed Complainant’s claim of harassment. The Agency also notes that the various incidents that Complainant cited to were discussed and addressed in the Agency’s summary judgment motion, which was unopposed by Complainant. Overall, the Agency asserts that there was nothing improper regarding the processing of Complainant’s complaint. 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 (EEO MD-110), at Chap. 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”). 2020003468 5 ANALYSIS AND FINDINGS Complaints Processing We note that Complainant raised concerns with the processing of her complaint. Complainant claims on appeal that the processing of her complaint was inadequate, citing to the Agency’s decision to consolidate her claims into one generalized claim. Complainant asserted that despite her contest of this action, the Agency proceeded with its complaint processing. Complainant argued that this clearly biased the outcome of the complaint. Complainant notes that this ultimately made the FAD deficient because it failed to address all of her concerns. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper due to the Agency’s decision to consolidate Complainant’s numerous claims into one generalized claim of harassment. The record demonstrated that while the Agency did not address each individualized incident, the investigation covered the overall harassment claim, discussed several of the incidents, of which many were addressed in the Agency’s summary judgment motion. Accordingly, we find that there is no evidence of inappropriate complaints processing by the Agency. Hostile Work Environment Complainant also alleged that she was subjected to unlawful harassment3. A harassment claim is examined under the standards set forth in 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 (Mar. 8, 1994). To establish this claim, a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome conduct; (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. 3 During the hearing stage, Complainant attempted to amend her complaint to add in numerous more related incidents beyond the one accepted claim; as of the appeal it totaled 27 claims. The Agency did not oppose the request. The AJ however, expressed uncertainty and noted that the issues would be decided at the Joint Pre-Hearing stage. Prior to this, Complainant withdrew her request. We note that while the numerous incidents were not accepted or discussed individually, the claims became part of the investigation during discovery and were addressed in the Agency’s summary judgment motion. Although we will not address each of the incidents individually, all matters which Complainant raised have been considered and viewed in the context of all bases and in the context of a hostile work environment. 2020003468 6 We note that with regard to retaliatory harassment, Complainant only needs to show that such actions are the type of action that would dissuade a reasonable employee from making or supporting a charge of discrimination. See Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53 (2006); see also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016); Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Here, Complainant has established parts 1 and 2 of a prima facie case of harassment. However, she has not clearly demonstrated that the harassment complaint of was based on her statutorily protected classes or in reprisal of her protected EEO activity. Nor, has Complainant demonstrated that the alleged harassment has 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. Instead, what is clear from the record is a generally contentious relationship between Complainant and E1. Complainant alleged that E1 clearly harbored animus towards her based on her protected classes and EEO activity. However, based on the record, there is simply insufficient evidence to demonstrate E1 engaged in any of the alleged actions based on her protected classes or in reprisal. Nor is there any indication that management failed to appropriately respond to the allegations. For example, the Agency promptly initiated internal investigations in response to Complainant’s complaints in both July 2016 and December 2017. When E1 filed a report with the Office of the Inspector General, potentially implicating Complainant, management promptly reviewed and dismissed the matter. The Agency also convened the Crisis Advisory Team (CAT) which interviewed both Complainant and E1, applied the standardized criteria to determine whether any imminent threats existed, and determined that there were none. Based on the record, we find that while Complainant established parts 1 and 2 of a prima facie case of harassment, she has not established parts 3 and 4, and there is no need to discuss part 5. Lastly, we note that beyond the Report of Investigation and Complainant’s arguments, Complainant did not present further evidence to support her claims. While Complainant timely requested a hearing before an EEOC AJ, she subsequently withdrew her request. Accordingly, we do not have the benefit of an AJ’s credibility determinations of these various conflicting statements. Complainant had to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. Here, the evidence is, at best, in equipoise. Accordingly, Complainant has failed to meet her burden of persuasion. Complainant v. Dep't of Health and Human Serv., EEOC Appeal No. 0120122134 (Sept. 24, 2014) citing Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) and Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012). Accordingly, we find that Complainant failed to show that she was subjected to harassment because of her protected bases and therefore her claim fails. 2020003468 7 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s finding that Complainant was not subjected to harassment as alleged. 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. 2020003468 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 September 9, 2021 Date