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

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020003871 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reita M.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2020003871 Agency No. ATL-20-0069-SSA DECISION On June 23, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 8, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Service Representative, GS-8, at the Agency’s Allapattah SSA Office in Miami, Florida. On December 5, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (Black/African American), religion (Catholic), and in reprisal for prior EEO activity when:2 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 Although Complainant also listed national origin (Haitian) as one of her protected classes in her complaint, she admitted in her affidavit that her national origin was not a factor in the Agency’s actions. As a result, the Agency dismissed Complainant’s allegation that she was discriminated 2020003871 2 1. On October 9, 2019, management conducted an unauthorized Weingarten interview; 2. On November 26, 2019, Complainant was issued a proposal to suspend for 14 days; and 3. Between July 9, 2019 and the present, she was subjected to harassment in terms of differential treatment, she was issued the proposal to suspend for 14 days, defamation of character, and working conditions. After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on June 8, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment: Claims 1 and 2 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or 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 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, non-discriminatory 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. against based on national origin. Complainant does not dispute it. Therefore we will no longer address national origin as a basis of the alleged discrimination. 2020003871 3 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). Since September 2014, Complainant has been a Customer Service Representative (CSR) for the Agency. On January 6, 2019, Complainant was assigned to the Allapattah Field Office on a hardship transfer. The Operations Supervisor at the Allapattah Field Office was Complainant’s first-line supervisor (“S1”) and the Assistant District Manager was Complainant’s second-line supervisor (“S2”). The District Manager of the Allapattah Field Office was Complainant’s third- line supervisor (“S3”). The evidence shows that employees at the facility were responsible for accurately recording their time of arrival and departure each day through the Agency’s online and attendance system, which is identified as “WebTA.” The record reflects that WebTA automatically records the time when an employee enters data into “start” and “stop” fields. An employee is expected to enter a remark in WebTA if there is more than a 5-minute discrepancy between the time that the employee actually signs in and the start time that the employee records. In addition, an employee is supposed to notify a supervisor if a computer problem prevents him or her from signing into WebTA. S3 (Caucasian, Jewish) stated that on September 9, 2019, while reviewing a group sign-in report, she noted that Complainant had recorded her sign-in time as 8:00 a.m. but she did not actually sign-in until 8:20 a.m. S3 noted further that 15 employees were working, and everyone else had less than a 5-minute discrepancy. After further investigation, S3 discovered many other days between July 8, 2019, through September 14, 2019, where there had been an unacceptable difference between the time Complainant claimed she started work and the actual time she signed in. S3 noted the sign-in differences for Complainant ranged from 12 minutes to one hour and 42 minutes before Complainant actually arrived at work. S3 stated that she consulted with the Agency’s Employee and Labor Relations officials and they agreed to conduct a Weingarten interview3 because the number of timesheet discrepancies was egregious and could result in discipline. Thereafter, S3 instructed S1 to conduct the Weingarten interview. Specifically, S3 noted 44 days over the prior of five Pay Periods (10 weeks) that Complainant had unacceptable discrepancies Complainant claimed the Weingarten interview on October 9, 2019, was unauthorized because she was never informed that she was incorrectly signing in. Complainant further stated that she should have been counselled by S1 on the protocol of signing in and she should have been given the opportunity to make any corrections prior to being subjected to potential disciplinary action, However, S3 stated that on June 26, 2019, at a general staff meeting that Complainant attended, specific reminders were issued by management about how to correctly sign-in. 3 A Weingarten interview is an inquiry with an employee by a supervisor which may result in disciplinary action. Certain union representation rights occur with a Weingarten interview. 2020003871 4 S3 stated, “I specifically remind everyone that the actual sign-in-time is when you get to your workstation, so [Complainant] was aware of the protocols.” S1 (African American, Jehovah Witness) stated that on October 9, 2019, she conducted a Weingarten Interview with Complainant. When she asked Complainant about her sign-in times, she stated the times she entered were the time that she could remember when she came in the office. S1 determined that Complainant’s responses were not credible given the WebTA reports. Following the interview, S1 stated that on November 26, 2019, she issued Complainant a Proposal to Suspend for 14 days. The record contains a copy of Complainant’s Proposal to Suspend for 14 days dated November 26, 2019, in which S1 placed Complainant on notice that proposed the suspension for “Conduct Unbecoming a Federal Employee.” Specifically, S1 stated that Complainant failed to properly annotate her correct start time on WebTA on the following dates: July 9-12, 15-17, 19, 22-26, 29-31; August 1-2, 8-10, 12-16, 19-21, 23-24, 26-30; and September 4-7, 9-12. In sum, management officials articulated legitimate, non-discriminatory reasons for the Weingarten interview and subsequent suspension proposal. Following a routine review of staff sign-in times, it became apparent to management that Complainant had significant discrepancies on numerous occasions between the time she signed in and when she actually began work. Complainant failed to prove, by a preponderance of the evidence, that this proffered reason was a pretext for discrimination. Complainant simply provided no evidence that this matter was in any way motivated by her race, religion or unlawful retaliatory animus. Harassment: Claim 3 Complainant claimed that between July 9, 2019 and the present, in terms of alleging that management harassed her by treated her differently than other co-workers, a proposing to suspend her, defamation of character, and general working conditions. Other than the suspension, which we have already determined was not discriminatory, Complainant specifically claimed that S3 was “standoffish” with her and did not respond when Complainant initiated conversation. She also claimed that S3 micromanaged her work, resulting in the office having low productivity. However, S3 claimed that she did not treat Complainant any different from any other employee. She further noted that Complainant had been avoiding having a conversation with her. 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, her race, religion and prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race, religion or prior EEO complaint. 2020003871 5 The image which emerges from considering the totality of the record is that there were conflicts and tensions with S3’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that S3 or any other management official was motivated by discriminatory or retaliatory animus. Her claim 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). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 2020003871 6 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. 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. 2020003871 7 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 November 4, 2021 Date