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

Equal Employment Opportunity Commission

Jul 26, 2021

Appeal No. 2019004113 (E.E.O.C. Jul. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Julieta B.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2019004113 Agency No. HQ-18-0768-SSA DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 29, 2019, 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 is whether Complainant established that the Agency subjected her to harassment based on sex. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Attorney Advisor at the Agency’s Office of Analytical Review and Oversight in Falls Church, Virginia. Complainant stated that, on March 14, 2018, she met with her first-line supervisor (S1) to discuss her interest in providing pro bono work through a nonprofit organization to assist asylum seekers and transgender clients. Complainant added that her girlfriend used to work at the nonprofit organization. 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. 2019004113 2 Complainant stated that, when she mentioned her girlfriend and the term “transgender,” S1 became “brusque, twitchy, and just appeared ‘weirded out.’” Report of Investigation (ROI) at 60. On March 14, 15, and 16, 2018, Complainant emailed S1 asking for new case assignments. In the email sent on March 16, 2018, Complainant stated that she was “really not trying to come off as aggressive” because she knew that S1 was juggling a lot of tasks. ROI at 39-41.Complainant stated that she did not receive any new cases, and on March 16, 2018, S1 called Complainant into her office; yelled at her for sending emails that were “aggressive, unnecessary, and ridiculous” and stated that Complainant was “stupid” for not contacting other management officials. ROI at 60-61. S1 stated that she did not respond to Complainant’s emails because she was involved in other activities and could not respond immediately. S1 stated that when they discussed Complainant’s emails, she informed Complainant that the tone of the March 16th email was “aggressive and abrupt,” and Complainant became upset and interrupted S1, until Complainant walked out of the meeting. ROI at 66-7. On May 3, 2018, Complainant met with S1 for her mid-year evaluation, and S1 informed her that her interactions with others were “less than courteous and respectful” and that there were issues with the tone and content of Complainant’s written communications. ROI at 61, 98. S1 stated that she observed that Complainant needed improvement in her interpersonal skills because she could be “abrupt and demeaning,” and provided examples to Complainant during their conversation, before Complainant walked out. ROI at 67. Complainant stated that they had a second meeting on May 11, 2018, to finish Complainant’s performance discussion. Complainant stated that S1 informed her that a Legal Assistant reported that Complainant was condescending in an instant message. Complainant stated that when she asked for a copy of the instant message, S1 responded that she would not provide it due to concerns about retaliation. Complainant stated that S1 also raised an incident during a meeting when Complainant allegedly raised her finger at another employee to stop the employee from speaking. ROI at 62. Complainant stated that she reported the harassment to her second-line supervisor (S2), who did not address the matter with her. ROI at 63. On September 21, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to non-sexual harassment on the basis of sex (sexual orientation)2 when, since March 14, 2018, management officials interacted with Complainant in an unprofessional, demeaning, and aggressive manner, including refusing to assign her cases upon request and placing negative statements in her 2018 mid-year evaluation. 2 In Bostock v. Clayton Cty, the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2019004113 3 The Agency accepted the harassment claim for investigation but dismissed the claim alleging disparate treatment when, on May 11, 2018, management issued Complainant’s 2018 performance discussion and Complainant did not agree with statements written in the document, which management refused to remove or modify, for failure to state a claim.3 ROI at 52-3. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge. 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 Agency found that Complainant did not demonstrate that she was subjected to harassment because she did not provide any evidence to show that the management officials’ actions were due to her protected status. The Agency also found that Complainant did not establish that the management officials’ actions were done with the purpose of unreasonably interfering with her work environment or to create a hostile work environment. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted a statement in support of her appeal. The Agency did not respond to Complainant’s appeal. CONTENTIONS ON APPEAL On appeal, Complainant argues that she established that the management officials’ actions were based on her statutorily protected class because S1 conducted herself professionally and was friendly towards Complainant until she disclosed her relationship with a woman and her desire to provide pro bono services to transgender asylum seekers. Complainant states that S1 subjected her to unprofessional and hostile treatment, such as yelling, insulting Complainant, and including “fabrications” in her performance reviews. Complainant asserts that the harassment interfered with her work environment because it had a negative impact on her productivity and her ability to be considered for promotions and detail assignments. Complainant states that she reported the harassment to S2, who refused to discuss the matter with her. Complainant also states that there were errors in the Agency’s final decision, such as S1’s statement that she did not change her tone or act unprofessionally during their meeting on March 14, 2018. Complainant asserts that S1 made a “disgusted look and nauseated expression” when she mentioned that she had a girlfriend and was interested in helping transgender asylum seekers. 3 We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the Agency’s dismissal of this claim; as such, we will not address it in the instant decision. 2019004113 4 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 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”). ANALYSIS AND FINDINGS Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant belongs to a statutorily protected class and that she was subjected to unwanted verbal conduct. However, Complainant did not show that any of the complained of conduct was due to her protected class. Although Complainant argued that S1’s behavior changed after she disclosed her personal relationship, we find that Complainant did not provide any supporting evidence to show that S1 was motivated by Complainant’s sexual orientation. S1 stated that she treated Complainant “professionally and with respect.” ROI at 66. Even crediting Complainant’s assertions that S1 yelled at and insulted her, we note that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Here, there is no evidence that S1’s behavior was so objectively offensive as to alter Complainant’s work environment. Further, the Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of her protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). 2019004113 5 Although Complainant disagreed with the management officials’ reasons for their actions, we find that Complainant did not present any supporting or corroborating evidence showing that the actions were taken to harass her due to her protected category. For example, S2 stated that during the time when Complainant requested additional cases, S1 was busy with training functions and other tasks, and that Complainant was aware that she could ask other managers for assignments because she had done so in the past. ROI at 70. Accordingly, we find that Complainant did not establish that the Agency subjected her to harassment based on sex. 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 final decision finding that Complainant did not establish that the Agency subjected her to harassment based on sex. 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. 2019004113 6 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. 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 July 26, 2021 Date