0120160191
04-12-2018
Towanda 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
Towanda B.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120160191
Hearing No. 551-2012-00112X
Agency No. SEA-11-0110-SSA
DECISION
On October 5, 2015, 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 4, 2015, final order 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) finding that Complainant did not demonstrate that she was subjected to harassment.
ISSUE PRESENTED
The issue presented is whether the AJ erred in finding that Complainant did not show that she was subjected to harassment
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Teleservice Representative, GS-8 at the Agency's Auburn Teleservice facility in Auburn, Washington. Complainant had a series of strokes and when she returned to work, Complainant maintained that her supervisor (S1) repeatedly encouraged her to consider disability retirement. Complainant indicated that when she reported this matter to her second-line supervisor (S2), he refused to investigate her complaint. Complainant also alleged that S1 once interrupted her three times during her service calls. Complainant received negative service evaluations. Complainant indicated that S1 said in a bragging manner that Complainant's OWCP claim had been rejected and that Complainant would have to pay back her continuation of pay. Complainant also alleged that S1 attempted to have a further discussion in the hallway about her OWCP claim which violated her privacy and humiliated her. Complainant alleged that management did not keep a former harasser away from her. And, finally, she alleged that S1 was rude and harsh with her and other employees with disabilities.
On December 28, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American/Asian), disability (Stroke, Cerebral Vascular Disease, and Post Traumatic Syndrome Disorder (PTSD)), and reprisal for prior protected EEO activity when on a continuing basis from August 2009 to the present she was subjected to harassment.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on March 6, 2015, and issued a decision on July 29, 2015. The AJ found that Complainant did not establish a prima facie case of disability, race, or reprisal discrimination or hostile work environment. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was provided with the accommodations she requested, and was able to make full use of the leave options and programs offered by the agency. Management indicated that S1 did not force the topic of retirement on Complainant and once Complainant complained that S1 had broached the topic, S2 spoke to S1 and found that S1 had not forced the issue. Management also explained that the practice of interrupting TSR's was common, as they took calls for seven and a half hours per day, and the supervisors tried to avoid approaching employees about work issues during their breaks. Further, management testified that unbeknownst to either Complainant or S1, Complainant was subject to her monthly service observation and the observer found that one of Complainant's calls needed improvement because Complainant responded rudely to the caller and another call was rated needs improvement because Complainant allowed the caller to ramble on about unrelated matters. As such, management indicated that Complainant's performance issues were unrelated to her interruptions. Management also alleged that Complainant's alleged harasser from a former complaint was instructed to stay away from her.
Further, management indicated that it did not treat employees with disabilities in a rude manner. Management testified that the employee that Complainant referred to filed for disability and resigned after her condition deteriorated to such an extent that she no longer qualified to do her job. Finally, management testified that S1 did not belittle Complainant regarding her OWCP claim and did not discuss her claim in front of others. S1 indicated that the only thing that she asked was "how did it go" and there was no discussion with Complainant about this.
Management testified that Complainant's allegations of hostile work environment included incidents that were nothing more than routine workplace events which she cast in the worst possible light but they were not severe or pervasive to establish a hostile work environment. The AJ found that Complainant's testimony was not credible during parts of her testimony. In contrast, the AJ found management to be credible. The AJ determined that S1 and S2 were straight forward in their answers, and neither provided internally inconsistent or illogical testimony. The AJ found Complainant's witness to be generally credible, but also found that her testimony was largely irrelevant to the claims Complainant brought. Further, the witness suffered from memory and attention problems, making it difficult at times to answer questions fully and accurately.
Finally, the AJ found that Complainant did not show that the reasons offered by the Agency were pretext for discrimination. Accordingly, the AJ determined that Complainant had not shown that the incidents alleged were severe or pervasive enough to establish a hostile work environment. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discriminatory harassment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that (1) the AJ erroneously declared the testimony of management witnesses as credible when there were clear contradictions in testimony and/or evidence, or the explanation given was not logical; (2) the AJ erred in ruling that the testimony of her credible witness was irrelevant given that issues in the case; and (3) given the testimony as a whole the Agency did, in fact, discriminate against Complainant on the basis of her disability.
In response, the Agency contends, among other things, that Complainant does not challenge the Administrative Judge's finding that she did not meet her burden to establish a prima facie case. Thus, the issue of S1's credibility and the relevance of her witness's testimony are moot. Complainant also does not challenge the AJ's finding that she lacked credibility, which could arguably pertain to these issues. According to the Agency, this failure to challenge the AJ's finding that she failed to establish a prima facie case is fatal to her appeal. Furthermore, the Agency argues that Complainant's first argument, challenging S1s credibility, simply reflects her subjective view of the evidence, which does not outweigh the AJ's view. The Agency requests that its final order be affirmed.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence of record supports the AJ's determination that Complainant has not proven discrimination by the Agency as alleged. We find that the claims were fully and correctly addressed by the AJ. Likewise, we find that the AJ correctly found that all of Complainant's harassment allegations, even when considered together, were insufficient to establish discriminatory harassment. On appeal, we find that other than Complainant's conclusory statements that she disagrees with the AJ's findings, she has not presented any evidence which shows that the AJ erred.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
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
____4/12/18______________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120160191
6
0120160191