Salvatore B.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 9, 2016

0120141001 (E.E.O.C. Sep. 9, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Salvatore B.,1
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120141001

Agency No. ATL-13-0145-SSA

DECISION

The Commission accepts Complainant’s appeal from the December 11, 2013 final Agency
decision (FAD) concerning his 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo.
For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Social Insurance
Specialist at the Agency’s Center for Disability in Atlanta, Georgia. On October 26, 2013,
Complainant’s first-level supervisor (S1) presented Complainant with his Fiscal Year 2012
appraisal. Complainant had declined the opportunity to submit a list of his accomplishments
for the year. Complainant received an overall rating of “3 – Successful Contribution.”
Complainant believed that S1 failed to consider his positive contributions, and only emphasized
the negative.

S1 instructed Complainant to supplement a spreadsheet by November 16, 2012. Complainant
claimed that he submitted a draft prior to the deadline, but S1 informed him that a few fields
were missing information. Complainant replied that he would complete the fields by

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.
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November 20, 2012. S1 gave Complainant verbal and written directives to complete the fields
by the original deadline. Complainant failed to submit the completed assignment by the
deadline and instead submitted the assignment on November 20, 2012. That same day, S1
issued Complainant a reprimand for failing to meet the due date of the assignment and
disrespectful behavior. On November 26, 2012, S1 instructed Complainant to fully complete
the assignment as he again failed to complete several fields in the spreadsheet. S1 informed
Complainant that management expected the assignment to be fully completed by November 27,
2012, and that if he failed to meet this expectation, he could face additional disciplinary action.
Complainant failed to complete the assignment by the expected date, and S1 issued
Complainant a Proposal to Suspend for 14 Days for failure to follow his supervisor’s
instructions and directives. Complainant’s second-level supervisor (S2) subsequently issued a
Decision to Suspend for 14 Days sustaining the charge.

On December 28, 2012 (and amended on March 8, 2013), Complainant filed a formal
complaint alleging that the Agency discriminated against him on the bases of age (71) and in
reprisal for prior protected EEO activity as evidenced by multiple incidents including, on
October 16, 2012, he received a low appraisal rating; management issued him a reprimand for
"failure to follow a management directive and disrespectful behavior;" on December 7, 2012,
he was issued a proposal to suspend for 14 days which was based on false information; and on
January 10, 2013, he was issued the decision to suspend for 14 days.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
FAD. In accordance with Complainant's request, the Agency issued a FAD, pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that
management articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as
to his performance appraisal, S1 stated that her assessment was based on Complainant’s
performance during the rating period; in particular, his efforts with the state agencies,
disability determination services subpoenas, and responsiveness to assignment due dates.
Furthermore, all three of Complainant’s supervisors confirmed that "Successful Contribution"
is not considered by management to be a “low” score. S1 noted that other employees also
received the same rating.

With respect to the reprimand, the Agency determined that S1’s emails clearly stated that
Complainant might be subject to disciplinary action if he failed to meet the deadline for the
assignment. Complainant offered no evidence as to why he was unable to comply with
management’s directive.

Finally, regarding the suspension, S1 affirmed that Complainant continued to disregard
management's directive despite several warnings that failure to complete the spreadsheet would
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result in disciplinary action. On November 26, 2012, when Complainant failed to meet the
deadline, S1 issued the Proposal to Suspend. S2 issued the Decision to Suspend because
Complainant continued to disregard management's directive to fully complete the assignment
even at the time the Decision was issued. Furthermore, Complainant was repeatedly warned
of possible disciplinary action for his failure to complete the assignment.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or a hostile work environment as alleged. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that his primary issue is the 14-Day Suspension, but notes
that he has not abandoned the remaining claims. Complainant argues that management’s
Suspension Proposal Notice was factually incorrect. Further, Complainant claims that there
are several factual deficiencies in the FAD, including whether his failure to meet the deadline
which led to the reprimand and suspension caused any harm. In addition, Complainant
believes that the assignment of S1 to be his supervisor was unlawful. Finally, Complainant
contends that S1’s “trumped-up charge” in the proposal to suspend was false and incapable of
independent corroboration by objective evidence in the record. Accordingly, Complainant
requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a
statutorily protected class; (2) he 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 his 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 employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove his harassment claim, Complainant must establish that he 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. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

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As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on his protected classes, management subjected him to a
hostile work environment based on several incidents where Agency officials took actions that
seemed adverse or disruptive to him. The Commission concludes that the conduct alleged is
insufficiently severe or pervasive to establish a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory or
retaliatory animus played a role in any of the Agency's actions. The record reflects that the
alleged incidents were more likely the result of routine supervision, managerial discipline,
personality conflicts, and general workplace disputes and tribulations. For example, as to his
appraisal, S1 confirmed that she rated Complainant’s performance at level 3 “Successful
Contribution.” ROI, Ex. 10, at 3-4. S1 stated that Complainant’s appraisal reflected her
assessment of his performance for Fiscal Year 2012, specifically his efforts with the state
agencies, disability determination services subpoenas, and responsiveness to his assignment
due dates. Id. at 4. S1 added that Complainant did not receive a “low” rating; rather, she
cited his performance difficulties, but overall successful contribution to the Agency. Id. at 5-
6.

Regarding the reprimand, S1 stated that on November 15, 2012, she gave Complainant a
verbal directive to complete an assignment in its entirety. ROI, Ex. 10, at 7. Complainant
stated that he did not have enough time to complete the request and that “you have all you’re
going to get.” Id. S1 then gave Complainant a written directive to complete the assignment
by the end of the next day. Id. Complainant continued to argue with S1 about completing the
assignment. Id. On November 16, 2012, Complainant identified an alternative completion
date, and failed to meet the deadline set by S1 for completion of the assignment. Id. As a
result, S1 issued Complainant the reprimand for his failure to follow a management directive
and for displaying disrespectful behavior. ROI, Ex. 15.

Finally, as to the Proposed Suspension and Decision to Suspend, S1 affirmed that she issued
the 14-Day Suspension Proposal on December 7, 2012, based on Complainant’s continued
failure to complete the assignment even after being issued the reprimand. ROI, Ex. 10, at 9-
10. S1 noted that Complainant had not fully complied with the management directive even as
of March 2013. Id. at 10. S2 upheld the Proposal and issued the Decision to Suspend for 14
Days based on Complainant’s failure to follow management’s directives regarding work tasks.
ROI, Ex. 17.

Finally, to the extent that Complainant claims that he was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence showing that the Agency's
explanation was a pretext for discrimination or reprisal. As a result, the Commission finds that
Complainant was not subjected to discrimination, reprisal, or a hostile work environment as
alleged.
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CONCLUSION

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 Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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
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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

September 9, 2016
Date