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

Equal Employment Opportunity Commission

Mar 31, 2021

Appeal No. 2020000311 (E.E.O.C. Mar. 31, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Scarlet S.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020000311 Hearing No. 420-2019-00002X Agency Nos. ATL-18-0335-SSA ATL-18-0650-SSA DECISION The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 12, 2019 final decision concerning the two formal complaints which claimed unlawful 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Post Entitlement Technical Expert (PETE) at the Agency’s Southern Program Service Center (SEPSC) in Birmingham, Alabama. Complainant filed two formal complaints on May 1, 2018, 2018 (“Complaint 1” - Agency No. ATL-18-0335-SSA) and June 20, 2018 (“Complaint 2” - Agency No. 18-0650-SSA), respectively. The Agency consolidated the two formal complaints for processing. 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 2020000311 Complainant claimed the Agency discriminated against her based on race (African-American), color (light-skinned), sex (female), disability,2 age (over 40), and in reprisal for prior protected EEO activity when: 1. on December 5, 2017, management lowered her Performance Assessment and Communications System (PACS) rating; 2. on May 7, 2018, her supervisor touched her inappropriately, stared at her, and stood inappropriately close to her; and 3. in December 2017, Complainant was subjected to harassment regarding working conditions, performance appraisals and discussions, workloads and assignment of duties, time and attendance, and awards after being promoted to the PETE position. Following its investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, on July 9, 2019, the AJ dismissed Complainant’s hearing request for failure to comply with her discovery orders. On August 12, 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. The instant appeal followed. ANALYSIS AND FINDINGS Cancellation of Hearing In her post Initial Scheduling Conference order, the AJ directed that a period of discovery would initiate on April 8, 2019, in which the Agency submitted discovery requests to Complainant with the expectation that she would respond by May 8, 2019. Complainant did not respond on time, claiming medical issues and the unavailability of her representative. The Agency offered to allow Complainant until June 7, 2019, to response if she would agree to a joint motion for enlargement of time to conduct discovery until July 8, 2019. Complainant agreed, and the Agency requested the extension of time, which the AJ granted. However, the Agency noted that on June 5, 2019, Complainant submitted insufficient responses to the Agency’s discovery requests. Thereafter, the Agency filed a motion to compel Complainant to respond to its discovery requests and provide dates she was available to be deposed. 2 Complainant identified her disabilities as depression, anxiety, high blood pressure, migraine headaches, ulcerative colitis, degenerative disc disease, carpal tunnel syndrome, and chronic pain. For purposes of this analysis, we assume, without finding, that Complainant was an individual with a disability. 3 2020000311 On July 1, 2019, the AJ granted the Agency’s motion to compel and ordered Complainant to provide complete reasons to the Agency’s discovery requests and dates she was available for deposition within five days of the issuance of the order. Complainant failed to comply with the AJ’s order, and on July 8, 2019, the Agency filed a motion to dismiss. On July 9, 2019, the AJ dismissed Complainant’s hearing request for failure to comply with her orders. On appeal, Complainant disputes the AJ’s decision to cancel the hearing. Specifically, Complainant argues that she was unable to submit exhibits because her manager repeatedly told her to leave her workstation because she was not on duty and was directed not to use the Agency’s computer. Here, we conclude that there is no evidence that the AJ abused her discretion in cancelling the hearing and remanding the matter back to the Agency for a decision based on the evidence developed during the investigation of the complaint. The reasons proffered by Complainant for her actions are insufficient to justify her failure to comply with the AJ’s orders and participate adequately in the discovery process. Accordingly, we will proceed with a review of the Agency’s decision on the merits of the complaint. Disparate Treatment - Claim 1 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. 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). 4 2020000311 Complainant alleged that on December 5, 2017, management lowered her Performance Assessment and Communications System (PACS) rating. The Module Manager (African-American, female, light brown, over 40), also Complainant’s second-line supervisor, explained that Complainant’s former supervisor was her rating official and “I had been in the module for half the year and I concurred with his decision.” She noted that the former supervisor “wrote up the appraisals and decided on the number ratings. He did this before he passed. 3 As a second line, I reviewed it: I look for consistency and justification. I would want to be sure [Complainant] was performing consistently as appraised. This is how I review everyone’s appraisals.” She noted that the former supervisor rated Complainant a 4.0 and she concurred with the rating and his annotations. Further, the Module Manager stated in regard to Complainant’s interpersonal skills, Complainant was rated as “3.” She explained that a rating of 3 means the employee contributed successfully. The Module Manager further stated that to receive an outstanding rating, Complainant “would have had to consistently meet the criteria for outstanding performance in this area, as cited on the PACS document. Her work did not consistently meet the standard for a ‘5’ outstanding level in this area.” Complainant asserted that she was doing additional work above and beyond her regular assignments and had been assigned special projects. The Module Manager, however, stated that she had no knowledge of such assignments. She noted that Complainant may have received special listings as others, “when we have designated work assigned. However, of most importance, the general work she was assigned was not being one to a consistent exceptional level. To my knowledge, she was not processing work above and beyond. Her regular work was not being done in a consistently timely manner. She received a successful rating.” Beyond her bare assertions, Complainant did not produce any evidence that the proffered reasons provided by the Module Manager for the disputed action were a pretext masking discriminatory or retaliatory animus. Harassment - Claims 2 - 3 To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (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 to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, 3 The former supervisor died on December 18, 2017. 5 2020000311 Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, 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 a protected basis - in this case, her race, color, sex, age, disability or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Regarding claim 2, Complainant alleged that on May 7, 2018, her supervisor touched her inappropriately, stared at her, and stood inappropriately close to her. The Assistant Module Manager (African-American, male, light brown, over 40), also Complainant’s first-line supervisor, explained that on May 7, 2018, the entire module attended the event and he and another manager handed out the certificates. He stated that when they called employees up one-by one and “everyone would clap and we handed each employee the certificate and shook their hand [Complainant] came up and I reached out to shake her hand. She touched my fingers, snatched the certificate and stomped off.” The supervisor stated that following the event, several employees talked to him about “how disturbing [Complainant’s] conduct was.” The supervisor asserted, “I have never inappropriately looked at or touched [Complainant]. I have never invaded her personal space. All contact with her has been strictly about work: processing cases and serving the public. [Complainant] gets extremely defensive anything management confronts her about her work assignments or progress.” Further, the supervisor stated that he and the other two managers forwarded Complainant’s allegation to the Harassment Prevention office and “they reviewed the situation and found no evidence of sexual harassment.” Module Manager (Caucasian, female, white, over 40) (“Manager 1”) asserted that her cubicle is opposite of where Complainant sits and she has not seen the supervisor “invading anyone’s personal space or being overly into personal space.” She acknowledged that the supervisor is a big man and has a deep voice.” Manager 1 further stated that Complainant “never went into any specifics; and she never mentioned anything sexual or that he made her feel uncomfortable in a sexual way.” With respect to Complainant’s claim that she was subjected to sexual harassment by the supervisor, the record reflects that there were no witnesses to the incidents. Finally, we note that there is no evidence in the record that would establish that the sexual harassment was done so openly and in front of others that Agency management should have been aware it was occurring. 6 2020000311 Regarding claim 3, Complainant alleged that in December 2017, Complainant was subjected to harassment regarding working conditions, performance appraisals and discussions, workloads and assignment of duties, time and attendance, and awards after being promoted to PETE position. The supervisor averred from the time Complainant joined the module, she challenged every action “because she did not like the way we did things.” For instance, the supervisor stated that when he talked to Complainant about a particular matter, she would send a follow-up email “that perhaps intends to summarize what I said, but it appears to be a challenge and she often does not correctly cite what I said.” He stated that this has been an ongoing issue in their working relationship but overtime, “it has progressively gotten worse.” The supervisor acknowledged that Complainant knew her job well but she did not do it as effectively as she should. He noted that her problems related to being able to process cases in a timely manner and managing her percentage of the work load. The supervisor noted Complainant did not have a good grasp of that issue. He stated that he would send emails to Complainant expressing his concerns concerning her cases that were not processed timely and “I would sometimes reassign some of her cases because she was not processing them timely.” With respect to Complainant’s allegation that the supervisor gives her burdensome work assignments, sending her too many emails asking about the progress of her work, and requiring her to perform general BA work that interfered with her ability to learn her new job, the supervisor explained that “all work is assigned evenly.” Specifically, the supervisor stated that when Complainant began working, “we had two new PETE and one experienced PETE and “all work was divided by three. I did not give [Complainant] any more work than I gave anyone else.” Moreover, the supervisor stated there are occasions when the module needs the PETES to reduce the workload for Benefit Authorizers (BAs). The supervisor acknowledged he conducted a formal counseling concerning Complainant’s communication issues with several BAs and the feedback she was giving them. In addition, the supervisor had a discussion with Complainant about her 559s because several BAs had complained about this matter. He explained that the 559s “are an electronic form the PETEs use to give feed back to the BAs about their cases. Our system is paperless. I have received concerns that [Complainant’s] feedback on the 559s is both inaccurate and unclear. Some of the BAs had to come to me directly and [Manager 1] and [Operations Manager] told me some BAs had also come to them.” Manager 1 stated that she has not observed the supervisor assign burdensome work assignment but “if we have aged cases (90 days and older) [supervisor] gives them equally to the PETES. They may be harder cases, but they are supposed to be the technical experts. If someone works more overtime, they get more work. [Supervisor] does not go to [Complainant’s] desk more than he goes to anyone else. He does not send more emails to her than he sends to others in his effort to follow up on the workload.” 7 2020000311 The Operations Manager (African-American, female, brown, over 40) stated that while Complainant’s work space is by her office, she does not talk to Complainant “about anything but work because she has accused me of things that were not true.” She also noted that Complainant “is very disrespectful to [a named supervisor] because he holds her accountable for her conduct, performance and attendance. I don’t think she has ever had a manager hold her accountable and she has a problem with accountability…he holds her accountable for union time, for taking leave, for processed work, for her conduct and the way she interacts with other employees.” In summary, the weight of the evidence does not support a finding that events occurred as alleged by Complainant and/or that discriminatory or retaliatory factors played any role in the events at issue. Her claim of discriminatory 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). The image which emerges from considering the totality of the record is that there were conflicts and tensions with her supervisor’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); Ferrell v. Dep't of Navy, EEOC Appeal No. 01994603 (no discriminatory animus found when supervisor used profanity) (citing Schaulis v. CTB/McGraw Hill, Inc., 496 F. Supp. 666, 670 (N.D. Cal. 1980)). 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. There is nothing in this record to show that management was motivated by discriminatory or retaliatory animus. CONCLUSION After a review of the record in its entirety, including consideration of all statements on appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred.4 4 On appeal, Complainant does not challenge the August 3, 2018 acceptance letter issued by the Agency regarding two other claims. Therefore, we have not addressed these issues in our decision. 8 2020000311 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. 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). 9 2020000311 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 March 31, 2021 Date