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

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2020001534 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Phyllis F.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020001534 Hearing No. 510-2017-00418X Agency No. ATL-16-1004-SSA DECISION On December 4, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 8, 2019 final order 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 and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as a Senior Case Technician, GS-0105-7, at the Agency’s Office of Disability Adjudication and Review in Miami, Florida. On January 3, 2017, Complainant filed a formal complaint in which she alleged that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), sex (female), sexual orientation (lesbian),2 and disability (right hand 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. 2 In Bostock v. Clayton County, 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 Transportation, 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). Phyllis F. v. Dep’t of Homeland Security, EEOC Appeal No. 0120150799 n.3 (Feb. 16, 2021); Vernita L. v. U.S. Postal Serv., EEOC Appeal No. 2020001124 n.2 (Feb. 10, 2021); Thomasina B. v. Dep’t of Defense, EEOC Appeal No. 0120141298 n.2 (Feb. 9, 2021). 2020001534 2 condition) by subjecting her to sexual and non-sexual harassment concerning her working conditions, inappropriate sexual advances, and by terminating her employment. Complainant entered duty with the Agency on September 30, 2015, with a one-year probationary period. In October 2015, Complainant claimed that while she was printing a document, her supervisor (S1) approached her and asked her in an angry tone, “What are you doing here?” Complainant attempted to explain that she needed a document printed and her mentor was away from his desk. Complainant alleged that S1 then repeated her question more loudly. Complainant then returned to her desk. Complainant claimed that on another occasion, S1 pushed her when she was leaving S1’s office. S1 denied pushing Complainant and met with M1 regarding the incident. Complainant stated that she has a condition that limits her ability to write with her dominant hand. Complainant claimed that her manager (M1) “took jabs” at her when she failed to take notes at training sessions. Further, Complainant alleged that M1 mentioned her failure to take notes during a mid-year performance evaluation. Complainant claimed that in January 2016, she was walking toward the bathroom and M1, another supervisor, and a Hearing Office System Administrator were blocking her path. Complainant claimed that she politely gestured “may I pass?” and they moved away. Later, S1 spoke to Complainant about the incident because M1 reported that Complainant had made an inappropriate gesture and commented something to the effect of “Oh girl, I didn’t know you had all that behind you” about M1’s buttocks. Complainant alleged that she was given lesser assignments than a co-worker (CW-1) hired at the same time. Complainant complained about her training and she and CW-1 were required to attend another training cycle. Additionally, Complainant claimed that on one occasion, CW-1 loudly attempted to blame her for some missing files. Complainant alleged that she tried to meet with M1 to address issues she encountered, including problems with S1, her co-workers, and her work assignments. M1 stated that she received an email from Complainant about issues she was having and deferred the matters to Complainant’s immediate supervisors. M1 denied that Complainant was treated differently than CW-1, but noted that Complainant absorbed information at a different pace. S1 added that Complainant often came to her office to complain about her trainers. S1 noted that CW-1 was learning quickly so they assigned her a judge while Complainant was assigned to “traveling judges,” but both had the same types of assignments. Complainant made comments to CW-1 about how she dressed and smelled. When CW-1 asked her to stop, Complainant stopped. CW-1 later asked to be moved away from Complainant. Another co-worker (CW-2) testified that she and Complainant got along well and went to lunch together at times. On one occasion, Complainant invited CW-2 to lunch, but CW-2 declined. Complainant continued asking CW-2 to go to lunch and CW-2 insisted that she would not. Complainant responded with a sexually inappropriate comment. CW-2 was offended by the comment, but did not immediately report it. 2020001534 3 In June 2016, Complainant claimed that M1 asked her to ride with her to go get a friend. While in M1’s car, Complainant claimed that M1 placed her hand on Complainant’s thigh and said things along the lines of “you’ve been playing hard to get” and “I’ve got your back, I’m going to take care of you.” Complainant claimed that she and M1 then began texting and developed a relationship, which included kissing, hugging, and rubbing in M1’s office. However, Complainant claimed that the relationship changed when Complainant told M1 that she had not dated outside of her race. Complainant alleged that M1 had a “fixation” on her and her response was to retaliate and attempt to embarrass her in staff meetings, isolating her, and referencing her personally in emails to the entire office. M1 denied making any inappropriate sexual advances or conduct. A Senior Attorney Advisor (SAA) testified that she told Complainant that she could call her by her first name. Complainant began to call SAA “baby girl” even after she asked her not to do so. CW-2 informed SAA about Complainant’s offensive comment to her and the Senior Attorney Advisor advised CW-2 to report the incident to management. Sometime later, Complainant attended a party at the housing complex of SAA and M1. SAA introduced Complainant to her husband and Complainant said something to the effect of “Oh, I know all about your wife.” SAA believed that Complainant was referring to an incident where SAA was assigned to train two paralegals, one of whom was a male. Complainant had asked SAA if her husband knew about it, suggesting that there was some other relationship going on between SAA and the mentee. On September 28, 2016, M1 issued Complainant a Notice of Termination during Probationary Period. The notice indicated that Complainant’s conduct, including reports of numerous inappropriate interactions with her co-workers and supervisors, was not conducive to the office’s professional environment. Further, the notice stated that Complainant had been counseled about her disruptive conduct and that Complainant’s co-workers were unwilling to work with her or assist her due to feeling uneasy and uncomfortable. As a result, M1 terminated Complainant’s employment effective that day. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing and subsequently issued a decision in favor of the Agency finding no discrimination.3 In the decision, the AJ initially found that the Agency officials were very credible and there was nothing about their tone, demeanor, consistent and corroborated testimony that undermined their veracity in any manner. On the contrary, the AJ determined that given Complainant’s tone, demeanor, vagueness, tendency to exaggerate, inconsistent and otherwise contradictory testimony, she was wholly not credible, and her testimony and allegations were not worthy of being given credence. 3 S1 and M1 have since retired from federal employment and did not testify at the hearing. 2020001534 4 The AJ found that there was no credible evidence demonstrating that a relationship between Complainant and M1 existed, but even if one did, there was no evidence that M1 based any employment decision on whether Complainant submitted or rejected her sexual advances. Accordingly, the AJ found that Complainant was not subjected to any unlawful quid pro quo or any sexual harassment as it related to this claim. Next, the AJ found that the record evidence revealed that Complainant made many inappropriate remarks to her coworkers. Thus, if anyone was responsible for having made any statements that could support a hostile work environment claim, it was Complainant. The fact that Complainant may have felt isolated from her coworkers had nothing to do with her protected classes, but rather with her aggressive and abrupt interpersonal skills which often times annoyed her coworkers. As a result, the AJ found that Complainant’s allegations were insufficiently severe or pervasive to establish that she was subjected to a hostile work environment. Furthermore, Agency officials articulated legitimate, nondiscriminatory reasons for its actions, including its termination of Complainant during her probationary period. Accordingly, the AJ found that Complainant was not subjected to discrimination or a hostile work environment. The Agency issued its final order adopting the AJ’s conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the final Agency order. We agree with the AJ that the record establishes that, even assuming arguendo, Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext. We also agree with the AJ that the record established that Complainant failed to demonstrate that the incidents complained of in this complaint were severe or pervasive enough to establish a hostile work environment. 2020001534 5 Finally, we find substantial evidence in the record to support the AJ's determination that Complainant failed to demonstrate that she was subjected to sexual harassment. Accordingly, we find that the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record. The Agency's final order is hereby, AFFIRMED. 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. 2020001534 6 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 May 19, 2021 Date