Sherril W.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jul 25, 2018

0120162583 (E.E.O.C. Jul. 25, 2018)

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

Sherril W.,1
Complainant,

v.

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

Appeal No. 0120162583

Agency No. DAL-15-0903-SSA

DECISION

On August 8, 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
July 11, 2016, 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. 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 Teleservice
Representative, GS-6, at the Agency’s Teleservice Center in Houston, Texas.

On October 9, 2015, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the basis of her race (African-American) when:

1. On June 19, 2015, Complainant was forced to resign.

2. Complainant was subjected to harassment in terms of training, bullying and supervision
from March 23, 2015 through June 19, 2015, when Complainant felt forced to resign
because she was fearful of being terminated.

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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At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), 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 her to discrimination as
alleged. The record reflects that Complainant was hired in March 2015, and received training as
a Teleservice Representative. Complainant was one of sixteen employees in the training class.
The participants were provided seven on-line modules covering different aspects of Agency
programs. Instructor 1 (Caucasian) stated that the trainees were required to read the modules and
complete the questions and scenarios. Instructor 1 explained that at the conclusion of each module,
an electronic assessment with an answer key was provided to each participant, and a mock
interview was conducted. According to Instructor 1, Complainant sometimes asked questions and
participated in the group exercises, but that frequently she asked questions that were irrelevant to
the subject discussed and she never participated in the group presentation exercises. Instructor 1
asserted that Complainant fell asleep on numerous occasions during the training. Instructor 1
maintained that Complainant did not appear to grasp the training; did not understand the problems;
and did not know, comprehend, or correctly apply the training materials. Instructor 1 noted that
another instructor spent more than 50% of her time working solely with Complainant.

Complainant stated that Instructor 1 told the class that educational degrees had nothing to do with
the job and some of them would not succeed. Complainant considered this remark directed at her
due to her educational background. According to Complainant, Instructor 1 informed the class
they each had to achieve a score of 70 or above on the tests. Complainant asserted that all they
did during the training sessions was sit and read and she believed the training was poor.
Complainant claimed that unlike when others asked questions, Instructor 1’s tone of voice changed
when she asked a question, as if she was being disturbed. Complainant stated that when she
worked with Instructor 2 (Caucasian) practicing a telephone interview he would say that she
completed it correctly, but when she repeated the same responses on telephone interviews
monitored by Instructor 1, she told Complainant that it was not correct. Complainant stated that
Instructor 1 would come by her workstation and refer to how difficult it was to catch on and how
the training would become more difficult, which Complainant felt was intimidating. According to
Complainant, Instructor 1 regularly told the class that if they were not making the grades, they
needed to consider that this might not be the job for them.

Complainant maintained that management was singling people out for termination because there
were sixteen people in the class and only thirteen could be retained. Complainant argued that she
and another African-American employee were not given an opportunity to successfully complete
the training class, and were given the option to resign or be fired. The Agency noted that
Complainant stated that she did not believe her treatment was attributable solely to her race, as she
thought that her education level and the professional way she carried herself were factors in the
bullying, in addition to very poor management and conflicting personalities.

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The Manager (Hispanic) asserted that Complainant struggled with learning from the beginning of
the training. The Manager stated that Complainant received training from all three instructors.
According to the Manager, it was possible for a student to score lower than 70 and remain
employed. The Manager noted that two African-American employees did not score 70 or higher,
but were retained because they demonstrated good attitudes and tried hard. With regard to
Complainant, the Manager explained that she was terminated because he determined that she
lacked the ability to learn the material and she demonstrated an uncooperative attitude.

Instructor 2 asserted that Complainant’s progress was measured by daily observation and about
eight tests were given on-line. Instructor 2 stated that Complainant did not perform well on the
tests as she left questions blank or gave incorrect answers. According to Instructor 2, Complainant
sometimes provided responses that were not relevant to the topic, and she frequently fell asleep
during class.

The Agency stated that one of Complainant’s coworkers (African-American) was in the same
training class and that she indicated Complainant asked many questions which both trainers
addressed. The coworker stated that the trainers always asked Complainant if she understood and
treated her in a polite manner. The coworker maintained that she did not see anyone bullying
Complainant or speaking to her in a demeaning manner. According to the coworker, Complainant
and all participants were supervised in the same manner.

With regard to Complainant’s resignation, Complainant asserted that the Manager told her he did
not think this was the job for her, and she could resign or be fired. Complainant stated that she
chose to resign. The Manager asserted that Complainant did not demonstrate the ability to learn
the material as evidenced by her low test average, and she stopped responding to efforts to assist
her.

The Agency determined that Complainant failed to establish a prima facie case of race
discrimination as to her claim of a forced resignation. The Agency reasoned that there is no
evidence that individuals of a different race were allowed to complete training while performing
similarly to Complainant in class evaluations. The Agency noted that the only participants who
moved on in their training, despite their lower than average scores, were both of the same race as
Complainant. Assuming arguendo that Complainant had set forth a prima facie case of race
discrimination, the Agency indicated that it presented legitimate, nondiscriminatory reasons for its
decision to terminate Complainant. According to the Agency, the decision to terminate
Complainant was based on her performance and attitude.

The Agency rejected Complainant’s arguments to establish pretext. The Agency stated that
Complainant failed to prove that management’s reasons were false. The Agency asserted that
although Complainant made many claims regarding the inadequacy of the training, all of her fellow
trainees received the same training.

With respect to Complainant’s harassment claim, the Agency determined that Complainant failed
to establish that the alleged harassment was based on her race. The Agency stated that the only
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evidence Complainant provided to support her claim was that Instructor 1 is Caucasian and the
other trainee given the same choice to resign or be terminated is African-American. The Agency
noted that Complainant’s claim focused on the training being inadequate and the trainers not acting
professionally. The Agency asserted that Complainant did not provide evidence to dispute
management’s position that this was the same training provided to all incoming Teleservice
Representatives or that she was treated similarly to the other students in the class. The Agency
determined that Complainant failed to demonstrate that she was subjected to unwelcome verbal or
physical conduct based upon her race, or that a reasonable person in her position would have found
the working conditions intolerable.

The Agency stated that Complainant failed to provide any information disproving its reasons for
terminating her, that her performance in the training course was inadequate and her attitude was
poor. The Agency rejected Complainant’s constructive discharge claim, noting that Complainant’s
resignation did not result from any type of intolerable working conditions, but rather Complainant
resigned in response to management’s issuance of a termination letter and subsequent choice
afforded her of resigning in lieu of termination.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that Instructor 1 engaged in scare tactics such as pulling her
aside before a test to discuss her grades and the possibility of her being released. Complainant
states that her class was constantly stressed about grade point averages and passing mock calls.
Complainant cites a coworker’s statement that she did not have a sleeping problem during class
and that she asked many questions despite the annoyed attitude Instructor 1 presented when she
posed questions.

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). Complainant must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). 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 burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that
the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

We shall assume arguendo that Complainant set forth a prima facie case of race discrimination
with regard to her claim that she was forced to resign. The Agency explained that Complainant
was given the choice of resigning or being terminated. According to the Agency, the Manager
decided to terminate Complainant based on input from the training class instructors that indicated
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Complainant lacked the ability to learn the material and demonstrated an uncooperative attitude.
We find that the Agency articulated legitimate, nondiscriminatory reasons for its decision to
terminate Complainant and Complainant’s subsequent resignation.

Complainant attempts to establish pretext by arguing that the training class was poorly run and
that Instructor 1 treated her badly because she is African-American and well-educated.
Complainant argues that the training material could have been presented in a better manner. The
matter of whether or not the class was poorly run is not germane to the issue of whether
discrimination occurred. Also, any resentment Instructor 1 may have held toward Complainant
based on Complainant’s educational achievements is not relevant to the issue of discrimination.
We do not discern credible evidence that establishes Complainant’s race was a factor in her
termination. We note that two African-American Teleservice Representatives in the training class
had scores below the acceptable standard, but unlike Complainant, they were allowed to continue
in the class because they worked hard and had a good attitude. The evidence indicates that
Complainant’s performance during the training class was deficient and that she sometimes had an
uncooperative attitude. We find that no discrimination occurred when the Agency decided to
terminate Complainant and Complainant subsequently resigned.

In order to establish a claim of 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In determining
that a working environment is hostile, factors to consider are the frequency of the alleged
discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it
unreasonably interferes with an employee’s work performance. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 at 6 (March 8, 1994).

As for Complainant’s claim that she was harassed, we find that she has failed to establish that the
conduct at issue was severe or pervasive, or that Instructor 1’s actions were based on
Complainant’s race. According to one of Complainant’s coworkers, the trainers always asked
Complainant if she understood and treated her in a polite manner. The coworker maintained that
she did not see anyone bullying Complainant or speaking to her in a demeaning manner. The
coworker stated that Complainant and all participants were supervised in the same manner.
Complainant stated that she found it intimidating when Instructor 1 engaged in scare tactics such
as talking to her about her grades and the possibility of being released before she took a test.
However, it is evident that Complainant was struggling during training and we consider Instructor
1’s attempt to discuss the situation with Complainant as being frank with Complainant rather than
harassment. Moreover, Instructor 1 stated that she discussed with other Teleservice
Representatives their progress during the training. Complainant argues that Instructor 1 constantly
threatened the class that they would lose their jobs if they didn’t score an average of 70 or greater.
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This contention, however, does not indicate that Instructor 1 was harassing Complainant based on
her race, but rather that Instructor 1 took a stern, rigorous yet fair approach to the class as a whole
and was not singling out Complainant. We find that Instructor 1’s alleged conduct was not
sufficiently severe or pervasive to constitute harassment. Moreover, there is no credible evidence
that her treatment of Complainant was attributable to Complainant’s race. We find that intolerable
working conditions did not exist and therefore Complainant has not established that a constructive
discharge occurred.

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 (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.
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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.
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

July 25, 2018
Date