0120170195
07-19-2018
Sudie B.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sudie B.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120170195
Hearing No. 551-2012-00126X
Agency Nos. SEA090584SSA, SEA090774SSA
DECISION
On October 14, 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 September 13, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
In the instant appeal, we examine whether the final agency decision (FAD) properly found that Complainant did not establish that she was discriminated against or subjected to harassment based on race, sex and reprisal for prior EEO activity with regard to 8 incidents which formed the basis of her hostile work environment claim, and when her excepted service appointment under the Federal Career Intern Program was terminated, effective August 12, 2009.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a probationary Teleservice Representative (TSR) at the Agency's Auburn Teleservice Center facility in Auburn, Washington. The Agency's FAD thoroughly discussed the facts in the record, and the instant decision incorporates them as stated. On July 9, 2009, Complainant filed a formal complaint alleging that the Agency subjected her to discriminatory harassment on the bases of race (African-American), and sex (female) as evidenced by 8 separate incidents to include: increased service observations, failure to provide her with reports from the observations, use of intimidation tactics while discussing her work performance and by placing her on an Intensive Training Review Program (ITRP), proposed removal, failing to provide her with a mentor, and others. On September 29, 2009, Complainant filed a separate complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII when it terminated her excepted service appointment as articulated in the statement of Issues Presented above.
At the conclusion of both investigations, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant initially requested a hearing, but on June 14, 2016, the AJ issued an order of dismissal and remanded the complaint to the Agency for issuance of a final decision based on Complainant's failure to comply with discovery requests and orders. The Agency issued the FAD concluding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission reverse the Agency's FAD and find in her favor that she was subjected to discrimination as alleged. Complainant contends that she was subjected non-sexual harassment, negative intimidation, a hostile work environment, unequal treatment, humiliation, defamation of character and discrimination by her management team. In addition, she states she was falsely accused of pretending to do her job, disadvantaging the public, speaking inappropriately, making horrendous mistakes, and forced to perform under extreme conditions. Complainant argues that the AJ erred in dismissing her hearing request after a hearing was granted and scheduled for September 13, 2016.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Dismissal of Hearing
Upon review of the record, we find that the AJ did not abuse his discretion when he dismissed Complainant's hearing requests July 13, 2016, and remanded the case to the Agency for issuance of a final decision. We note that an AJ has wide latitude in directing the terms of an EEOC administrative hearing. See 29 C.F.R. � 1614.109; EEO MD-110, Ch. 7, � III.D. The record reflects that Complainant failed to respond to several discovery requests, a motion for sanctions, as well as, an order granting the Agency's motion to compel discovery responses. Based on the above, we find no abuse of discretion in the dismissal.
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). 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. Co. 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, 441 U.S. at 804 n.14. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, Complainant established prima facie cases of discrimination based on race, sex and reprisal for engaging in prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for the incidents Complainant cites to establish her claim, and that Complainant did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus. A review of the record supports the Agency's finding in the FAD that some of the alleged incidents did not occur as Complainant articulated them. The record reflects that there was no policy requiring a five-day review period of service observation summaries, or that the Intensive Training Review Program was intended to serve as a vehicle for initiating termination.
With respect to Complainant's allegations that she received a larger number of service observations than other employees, and that she did not receive copies of the observation reports for review in a timely manner, the record reflects that the number of observations Complainant received was directly correlated to her position as a trainee. Complainant's first-level supervisor (S1) explained that trainees received more service observations because they were still learning the job, and that while the goal is to get the observation summaries out in 48-hours, there is sometimes a delay if an employee or supervisor is out of the office. S1 explained that Complainant was advised of this policy on numerous occasions, but frequently refused to sign the observations or provide rebuttals.
The record reflects that Complainant was placed on a ITRP to provide her with a course of action for improvement. Complainant's second-line supervisor (S2) acknowledged that a meeting was held to advise Complainant of her shortcomings and placement on an ITRP, but that the meeting was not to inform her of termination. The purpose of the ITRP was to offer Complainant a summary of her deficiencies issues and a roadmap for improving these deficiencies. There is no evidence in the record to support Complainant's contention that S1 or S2 addressed her in a demeaning manner while discussing her performance of the ITRP
Complainant's appointment was terminated due to her substandard performance, specifically her inability to perform at the level required for her position. While Complainant received the opportunity to improve under the ITRP, she failed to do so. Complainant did not demonstrate any progress in her ability to perform after training, mentoring and feedback from service observations. While Complainant makes generalized assertions that she disagreed with the Agency's legitimate non-discriminatory reasons for the termination, she offers no evidentiary support that would disprove Management's asserted reasons.
In sum, our review of the record confirms the Agency's assertion that its decisions were based on its determination of how best to effectively manage the workplace and its assessment of Complainant's performance and conduct in the workplace. Nothing in the record, or submitted on appeal by Complainant, demonstrate that the actions were in any way motivated by discriminatory animus. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
Harassment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23. An abusive or hostile working environment exists "when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the condition of the victim's employment." Meritor, 477 U.S. at 65. Usually, unless the conduct is pervasive and severe, a single incident, or group of isolated incidents, will not be regarded as discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep't of Labor, EEOC Request No. 05950152 (Feb. 8, 1996); Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996).
An alteration to an employee's working conditions exists if a tangible, discrete employment action is taken, e.g., hiring, firing, transfer, promotion, non-selection, or the Agency's actions were sufficiently severe and/or pervasive to create a hostile work environment. The harasser's conduct is evaluated from the objective viewpoint of a reasonable person in a complainant's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
The Agency concluded that Complainant failed to establish a claim of harassment because she failed to show that that she was subjected to severe or pervasive treatment such as to create an unlawful work environment on any basis. Instead, the incidents complained of here appear to have been reasonable actions of Complainant's supervisor and other management officials taken in the course of discharging their supervisory responsibilities. The incidents identified were common interactions and employment actions that would occur between a supervisor and a subordinate employee in the workplace. We agree with the Agency's findings in the FAD that the incidents, considered together and taken as a whole, do not rise to the level of a discriminatorily hostile workplace.
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.
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
__7/19/18________________
Date
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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