[Redacted], Sherita V., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionOct 24, 2022Appeal No. 2022000564 (E.E.O.C. Oct. 24, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherita V.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2022000564 Hearing No. 410-2020-00087X Agency No. ATL-19-0590-SSA DECISION On November 8, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 7, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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 On September 4, 2018, Complainant was hired by the Agency as a Claims Specialist, GS-09, in Savannah, Georgia, subject to a two-year Excepted Appointment under a Schedule A appointing probationary period. On May 14, 2019, Complainant filed a formal complaint. Therein, Complainant claimed that the Agency discriminated against her when: 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. 2022000564 2 1. The Agency subjected Complainant to non-sexual harassment based on age (42), race (African American), sex (female), when beginning on September 20, 2018 to present, management officials created an uncomfortable work environment, insisted that they be addressed only verbally and not by email, and treated Complainant unfairly regarding taking breaks in comparison to other employees. 2. The Agency subjected Complainant to nonsexual harassment based on age, race, sex, and disability2 when, on March 29, 2019, Complainant received a termination letter prior to her one-year probationary period. After an investigation, the Agency provided Complainant with a copy of the report of investigation, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency submitted a Motion for Decision Without a Hearing (Motion). Complainant filed her Opposition to the Motion. The AJ issued a decision by summary judgment on May 19, 2021, finding no discrimination was established. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material’ if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record o by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a 2 The record reflects that Complainant also raised the basis of reprisal in her statement during the investigation of claim 2. 2022000564 3 dispute. Even construing any inferences raised by undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Harassment To prove a harassment/hostile work environment 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 sex, disability, and age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Regarding claim 1, the Operations Supervisor (“Supervisor”) (Caucasian, female, age 50) was Complainant’s direct supervisor. The Supervisor was aware Complainant has a disability which qualified Complainant for hiring under the Schedule A hiring authority. The Supervisor denied subjecting Complainant to harassment. On September 21, 2018, Complainant sent an email to the Supervisor expressing concerns regarding her treatment and seeking an understanding regarding office rules. The Supervisor stated that she met with Complainant and determined that Complainant felt the Supervisor was upset with her because Complainant had to leave before the end of her eight-hour workday. The Supervisor informed Complainant, however, that she was not upset, but she had not been made aware of an emergency regarding Complainant’s child, which apparently motivated the early departure. The Supervisor noted that Complainant thought she was discouraging the use of sick leave for purposes of caring for her child. The Supervisor explained the manner in which to request leave in emergencies and what type of leave could be used. The Supervisor also reiterated that she did not have to divulge any private information. In addition, the Supervisor stated that she had gone to Complainant’s desk not knowing she was on break. The Supervisor noted there was a note on her desk stating she was on break, but she did not see it. The Supervisor and Complainant discussed communicating with peers about lunches and breaks. She informed Complainant that it was not a requirement to use Skype to communicate about lunches and breaks, but most of the employees used it because it works well. Following their discussion, Complainant sent an email to the Supervisor stating she wanted to learn and be part of the team. The Supervisor stated that she assigned Complainant to complete the daily logs because the Supervisor determined that Complainant did not finish work assignments and could not articulate what she did during her workdays. As a result, the Supervisor asked her to complete the logs to try to identify training needs and help her streamline her work. She noted that Complainant did not expressly object to completing the daily log or express concerns. 2022000564 4 Regarding transmission of absences, Complainant was advised to contact management officials regarding impending absences, and not merely to send emails to co-workers when such absences occurred. The image which emerges from considering the totality of the record is that there were conflicts and tensions with the Supervisor 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 their protected bases. Here, the preponderance of the evidence fully supports the AJ’s conclusion that the weight of the evidence does not support a finding that the Supervisor was motivated by discriminatory animus. Complainant’s claim of harassment is precluded based on our findings that she 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). Termination A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2022000564 5 Regarding claim 2, the Supervisor stated that she proposed that Complainant be terminated due to her ongoing failure to perform at an acceptable level in the critical job elements of interpersonal skills and engages in learning, and failure to follow instructions. At that time, Complainant had attended the Customer Service Representative (CSR) training course and was assigned a mentor. The Supervisor stated that Complainant’s mentor gave her one-on-one training and provided constant support. The record contains a copy of Complainant’s termination dated March 29, 2019, in which the District Manager placed Complainant on notice that she decided to terminate Complainant from her position as Claims Specialist at the close of business on April 12, 2019. Specifically, the District Manager stated that Complainant was being terminated due: Failure to perform at an acceptable level in the critical job elements of Interpersonal Skills and Engages in Learning; and Failure to follow Regulations, Instructions and Orders. The record evidence fully supports the conclusion that the AJ properly determined that Complainant failed to prove, by a preponderance of the evidence, that these legitimate reasons for her termination, as referenced above, were a pretext masking any discriminatory or retaliatory motivation. CONCLUSION We AFFIRM the Agency’s final order adopting the AJ’s summary judgment decision finding no discrimination or unlawful retaliation was established. 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). 2022000564 6 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). 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. 2022000564 7 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 October 24, 2022 Date Copy with citationCopy as parenthetical citation