Sam S.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jun 7, 2018

0120162227 (E.E.O.C. Jun. 7, 2018)

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

Sam S.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120162227

Agency No. SF-15-0141-SSA

DECISION

On June 22, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
May 13, 2016, final decision 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. Our review is de novo. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Claims
Representative, GS-105-11, at the Agency’s District Office in Ventura, California.

On December 18, 2014, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his sex (male) and age (48) 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 Complainant also claimed discrimination on the bases of being married and a parent. The Agency
analyzed Complainant’s claim where relevant as to these bases since the Agency’s policies prohibit
discrimination due to an individual’s parental and/or marital status. The Agency determined that
discrimination did not occur on the bases of Complainant being married and a parent. However,
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1. Complainant was not selected for a four-month promotional detail as an Operations
Supervisor in a non-competitive process in October 2014.

2. Complainant was subjected to harassment from November 2011 through December 12,
2014, when he was not promoted from 2011 to 2014.

3. Complainant was subjected to harassment when his Supervisor evaluated his
performance as “Successful” for Fiscal Year 2014.

4. Complainant experienced a hostile work environment during his temporary
promotional detail from April 2014 – September 2014 due to the conduct of a female
subordinate employee.

5. Complainant was subjected to harassment when the Department of Labor notified him
that he had been overpaid wages.

6. Complainant was subjected to disparate impact discrimination on the basis of sex when
the Agency promoted only females into management positions.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. The record reflects that Complainant was assigned in March 2014 to work a detail as
an Operations Supervisor at the Agency District Office in Thousand Oaks, California.
Complainant was to serve in this position for a period not to exceed a year but was replaced on
November 3, 2014. The new Operations Supervisor was a 47-year old female. Unlike
Complainant, her detail was to be for not more than 120 days and she did not have to be chosen
through a competitive process. The Agency noted that a detail for not more than 120 days did not
require a vacancy announcement.

The District Manager who served as the selecting official stated that he chose the selectee because
she is outgoing and likes to motivate employees; she is familiar with Service Representatives due
to her prior experience working in a similar group, and as a mentor for the group. According to
the District Manager, the selectee has previous experience as a supervisor and can take constructive
feedback very well. The District Manager asserted that Complainant struggled in the Operations
Supervisor position because he had a problem with some employees, particularly one female
Claims Representative.

claims on the bases of marital and parental status are not appealable to the Commission and will
not be addressed here.
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The District Manager explained that they had frequent disagreements and that he personally
witnessed Complainant behaving in a harassing manner towards this employee by telling her he
was the boss and that was that. The District Manager stated that Complainant failed to meet his
employees halfway and thus did not demonstrate sufficient leadership.

The Agency determined that Complainant failed to establish a prima facie case of disparate
treatment as to his demotion from his detail at Thousand Oaks. The Agency reasoned that
Complainant and his successor were not similarly situated given that Complainant’s detail was not
to exceed a year and had gone through the competitive process as opposed to the successor’s detail
being for only 120 days and not having involved a vacancy announcement. The Agency
determined even if Complainant had set forth a prima facie case of discrimination, it had presented
credible business reasons for removing him from the supervisory position.

Complainant maintained that the coworker at issue intimidated him by refusing to talk to him and
being condescending. According to Complainant, this coworker uttered rude comments indicating
he did not know what he was doing, complained that he supervised like he was in the military,
acted like she did not like a male telling her what to do, and was insubordinate when issued
assignments. Complainant stated that during a mediation session the District Manager ordered the
coworker to speak to Complainant. The coworker maintained that she had difficulty
communicating with Complainant and she informed the District Manager of the problem.
According to the coworker, most of her supervisors have been males and she did not have difficulty
with them; nor did she speak to Complainant in a condescending manner. Complainant claimed
that he was subjected to further harassment on December 12, 2014, when he received a letter
stating he was overpaid $793.36 in wages because of a change in his grade due to a demotion
which was not processed in a timely manner. The District Manager asserted there was no action
which he could have taken to prevent Complainant from receiving the letter.

The Agency determined that there was no evidence that Complainant was treated in a manner of
sufficient severity or pervasiveness to constitute harassment. The Agency noted that from the
District Manager’s perspective, Complainant’s antagonistic relationship with at least one and
possibly two subordinate employees warranted his removal from the Thousand Oaks office. The
Agency rejected the charge for a salary overpayment as being indicative of a hostile work
environment. The Agency stated that the charge resulted from an unintentional administrative
error on management’s part.

In terms of Complainant’s performance evaluation for Fiscal Year 2014, Complainant received an
overall rating of “Successful.” With regard to his interpersonal skills, Complainant was criticized
for his manner in communicating with two subordinate female employees. As for the Manages
Performance element, Complainant was criticized for failing to establish trust and a breakdown in
communication. Complainant stated that the District Manager’s actions contributed to him
receiving a lower rating, not receiving performance awards and affecting his future consideration
for promotion.
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Complainant maintained that it was not fair for the District Manager to issue his final performance
review for his five months in the Operations Supervisor position at Thousand Oaks since he spent
seven months working as a Claims Representative in the Ventura District Office.

With regard to other positions at issue that Complainant sought, the record reflects that
Complainant applied for a temporary Operations Supervisor position in Oxnard, California in
September 2011. The selectee was a 43-year old female. For a temporary Operations Supervisor
position available in San Fernando, California in December 2012, the selectee was a 28-year old
male. For a permanent position as an Operations Supervisor in Santa Barbara in May 2013, the
selectee was a 39-year old female. For a temporary Assistant District Manager position available
in Santa Barbara in September 2014, the selectee was a 46-year old female. The Agency noted
that Complainant was the selectee for the temporary Operations Supervisor position in Thousand
Oaks before he was replaced after six months.

Complainant claimed that his nonselections reflected disparate impact as females were promoted
into management positions. The Agency determined that Complainant did not establish that he
was adversely affected by the Agency’s selection process since he was selected for the temporary
promotion in 2014 with the endorsement of upper management. The Agency further determined
that the selection process was supported by credible, nondiscriminatory business reasons.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he was replaced in his Thousand Oaks detail by a female
with no experience or supervisory training that could compare to him. Complainant maintains that
he was continuously harassed by a female Claims Representative who was combative, rude,
abrasive and demeaning toward him, and continuously complained to the District Manager about
him assigning her work. Complainant states that she also made false accusations about workflows
not being followed or simply refused to talk to him. Complainant argues that the District Manager
was aware of her tendency to be combative in her communication style but refused to hold her
accountable and instead chose to blame him. According to Complainant, the District Manager’s
failure to change his position from Supervisor to Claims Representative after he was removed from
Thousand Oaks and the resulting overpayment in wages was done to harass him in retaliation for
complaining to management in August 2014 concerning the District Manager’s competency.
Complainant states that all Operations Supervisor positions in the Oxnard office for the period of
November 2010 to 2014 were filled by females. According to Complainant, all four management
positions in the Ventura facility are filled by females.

In response, the Agency asserts as to Complainant’s removal from the Thousand Oaks Operations
Supervisor detail that he failed to set forth a prima facie case of age discrimination. The Agency
states that the selectee chosen to succeed Complainant was only one year younger than
Complainant. The Agency states that the reasons for Complainant’s demotion were his
interpersonal issues with other employees and his repeated conflicts with the aforementioned
female coworker. The Agency asserts that the successor had the technical and interpersonal skills
that made her a good fit for the position.
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In particular, the Agency notes that she was outgoing, liked to motivate employees, and was
already an informal leader for the employees she would be supervising.

The Agency maintains that Complainant failed to establish that its reasons for its decision to end
his detail were pretextual. The Agency notes that Complainant attempts to argue that the selection
of his successor based on her social skills was discriminatory toward him as a male. The Agency
states that Complainant provided no reason why social skills are gender specific.

With regard to his harassment claim, the Agency asserts that there was no causal nexus between
the female subordinate employee’s conduct and Complainant’s sex. The Agency notes that
Complainant stated that this employee’s past supervisors, both male and female, all had the same
experience. The Agency reasons that the female employee could not have the same issues working
with supervisors and coworkers of both genders while simultaneously targeting Complainant
because of his sex. Further, the Agency denies that Complainant’s difficulty managing this
employee reflected sufficiently severe or pervasive conduct to constitute harassment by the female
employee. The Agency states it was a contentious relationship and that from the District
Manager’s perspective, Complainant was doing the harassing as another employee filed a
harassment complaint against Complainant, and other employees complained about his behavior.

The Agency rejects Complainant’s contention that his “Successful” performance rating was
attributable to harassment based on his sex and age. According to the Agency, it is clear that the
District Manager evaluated Complainant based on his performance as an Operations Supervisor.
The Agency also gives no credence to Complainant’s argument that his various nonselections are
indicative of harassment. The Agency states that this argument is unconvincing in light of his
selection for the Operations Supervisor detail in Thousand Oaks in March 2014.

The Agency asserts that Complainant has no evidence that any Agency policy had a disparate
impact on men. The Agency states that Complainant does not identify a particular aspect of the
hiring criteria allegedly responsible for any disparate impact. The Agency denied that there is any
evidence of any statistical disparity in hiring practices. According to the Agency, Complainant
relies on his own list of statistics showing that only two of eleven supervisors in four offices are
male. The Agency disputes the accuracy of these numbers and asserts that six males were hired
out of the ten open management positions from 2013 to 2015. In particular, the Agency notes that
evidence of there being no disparate impact is that Complainant was selected for the Thousand
Oaks Operations Supervisor position in March 2014.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978).
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Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13.

The prima facie inquiry may be dispensed with where, as here, the Agency articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

With respect to Complainant’s removal from the detail at Thousand Oaks, we shall assume
arguendo that Complainant set forth a prima facie case of sex and age discrimination. The Agency
explained that Complainant was reassigned back to his Claims Representative position in Ventura
due to interpersonal difficulties that existed during his supervisory tenure at Thousand Oaks. With
regard to his interpersonal skills, Complainant was criticized for his manner in communicating
with two subordinate female employees. As for the Manages Performance element of his
performance plan, Complainant was criticized for failing to establish trust and a breakdown in
communication. According to the Agency, Complainant and one female subordinate employee in
particular had frequent disagreements and the District Manager stated that he personally witnessed
Complainant behaving in a harassing manner towards this employee by telling her he was the boss
and that was that. The District Manager stated that Complainant failed to meet his employees
halfway and thus did not demonstrate sufficient leadership. We find that the Agency articulated
legitimate, nondiscriminatory reasons for removing Complainant from the Thousand Oaks detail.

Complainant attempts to establish pretext by pointing out that he was succeeded in the Operations
Supervisor detail by a female. Complainant also claims that the female employee with whom he
had frequent disagreements was abrasive and insubordinate toward him, and engaged in such
behavior because she did not want to receive orders from a man. We find that Complainant has
failed to establish that his removal from the detail was attributable to discriminatory motivation.
Complainant’s difficulties in maintaining a harmonious relationship with certain members of his
staff necessitated his removal. Complainant has not presented persuasive evidence that the
treatment he received from the aforementioned female employee was based on his sex. We
observe that the individual chosen to succeed Complainant was praised for her interpersonal skills
as she was considered outgoing, she liked to motivate employees, and was already an informal
leader for the employees she would be supervising.

Complainant claimed sex and age discrimination with regard to four nonselections that occurred
from 2011-2014. The selectee for an Operations Supervisor position in Oxnard in 2011 was a 4
43-year old female. She had served as a Temporary Operations Supervisor for one year at Ventura.
Complainant had served for one year as a Title II Operations Supervisor in Oxnard, another four-
month stint as an Operations Supervisor at Oxnard and a 5-6 months as an Operations Supervisor
in Ventura.
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Although Complainant had spent a greater amount of time working in the Operations Supervisor
capacity, we do not discern that Complainant’s qualifications were observably superior to those of
the selectee so as to indicate that his nonselection was attributable to discriminatory motivation.

With respect to a 2012 Temporary Operations Supervisor position in San Fernando, also referred
to as a Supervisory Social Insurance Specialist position, the selectee was a 28-year old male. He
had served for four years as a Social Insurance Specialist. We observe that he is the same sex as
Complainant and thus this precludes a claim of sex discrimination. We regard the selectee’s
credentials to be of sufficient merit to negate Complainant’s claim that discrimination occurred.

In terms of the permanent Operations Supervisor (Supervisory Social Insurance Specialist)
position filled in 2013 for the Santa Barbara office, the Agency explained that the selectee, a 39-
year old female, performed the most outstanding among the twelve candidates during her
interview. She had worked as a Social Insurance Specialist (GS-12) for five and a half years. We
do not discern that Complainant’s qualifications were so observably superior to those of the
selectee so as to infer that his nonselection was the result of discriminatory motivation.

With regard to a Temporary Assistant District Manager, GS-13, position available in 2014 in Santa
Barbara, Complainant was one of nine candidates. The selectee was a 46-year old female. The
record reflects that the selectee had worked as an Operations Supervisor, GS-12, for two years and
nine months and as a Temporary Operations Supervisor for one year. We note that by this point
Complainant had served five months in the detail at Thousand Oaks. In light of the selectee’s
credentials and the difficulties Complainant was experiencing at Thousand Oaks, we find that
Complainant has not shown that his nonselection was attributable to his sex or age.

Complainant contends that the Agency’s policies and selection procedures had a disparate impact
on males. To establish a prima facie case of disparate impact, Complainant must show that an
agency practice or policy, while neutral on its face, disproportionately impacted members of the
protected class. This is demonstrated through the presentation of statistical evidence that
establishes a statistical disparity that is linked to the challenged practice or policy. Watson v. Fort
Worth Bank & Trust, 487 U.S. 977, 994 (1988) (Complainant must present “statistical evidence
of a kind and degree sufficient to show that the practice in question has caused the exclusion”).
Specifically, Complainant must: (1) identify the specific practice or practices challenged; (2) show
statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy.
Id. The burden is on Complainant to show that “the facially neutral standard in question affects
those individuals [within the protected group] in a significantly discriminatory pattern.” Dothard
v. Rawlinson, 433 U.S. 321, 329 (1977); see also, Gaines v. Department of the Navy, EEOC
Petition No. 03990119 (August 31, 2000).

Complainant claimed in his formal complaint that disparate impact occurred in light of what he
contends was the Agency’s overwhelming selection of females for management positions in
certain offices. However, we observe that Complainant has not identified an Agency practice or
policy, while neutral on its face, that disproportionately impacted males. Moreover, the statistical
evidence upon which Complainant relies is not as slanted toward female selectees as he suggests.
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Complainant identified for the Ventura office three females in managerial positions. However, the
Agency investigation revealed that as of 2013, one male and one female in management positions
had been selected at Ventura. As for the Oxnard facility, Complainant named one male and three
females in management positions and the Agency named one male selectee. With regard to the
Santa Barbara office, Complainant named two female management officials and the Agency
investigation referred to three female and two male selectees. As for the Thousand Oaks office,
Complainant named one male and one female management official, but did not include his own
selection. The Agency investigation named two male selectees for management positions,
including Complainant’s Operations Supervisor detail. We note that Complainant’s female
successor in 2014 was not included since the Agency investigation did not encompass selections
beyond 2013. Upon review of the record, the Commission finds that Complainant, who carries
the initial burden of proof, has failed to provide sufficient evidence to establish a prima facie case
of disparate impact. Complainant has failed to identify a facially neutral policy or practice that
would cause a statistical disparity. Complainant needed to identify a policy, not just his
generalized belief that the Agency committed discrimination. This contention of disparate impact,
without more specificity, does not meet Complainant’s prima facie burden.

With regard to Complainant’s claim of harassment as to a letter he received concerning an
overpayment of $793.36 in wages, we discern no persuasive evidence of discriminatory intent.
The record indicates that a delay in administrative processing occurred with regard to
Complainant’s demotion from the Thousand Oaks detail to his lower-paid Claims Representative
position at Ventura. Complainant has not established that this delay and the subsequent letter to
recoup the overpayment was attributable to either his sex or age. As for Complainant’s claim of
harassment regarding his Fiscal Year 2014 performance evaluation, the Agency presented
evidence that Complainant’s difficulties during his supervisory tenure at Thousand Oaks,
particularly concerning his inability to establish trust and a breakdown in communication, resulted
in his “Successful” rating. We find that Complainant has not refuted the Agency’s explanation for
his performance evaluation rating.

As for Complainant’s claim of harassment concerning the treatment he received from a female
subordinate employee, it is evident that they had a contentious relationship and that she had a
history of being a difficult employee to supervise. However, the record indicates that both male
and female supervisors had problems dealing with her. We discern no persuasive evidence that
her conduct toward Complainant was based on his sex or age. In terms of the various positions
that Complainant sought and where he was not selected, we find no support for Complainant’s
argument that these nonselections reflected the Agency’s intent to impose a hostile work
environment on him based on his sex or age.

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.
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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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 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.
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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

June 7, 2018
Date