0120170633
10-12-2018
Wilda M.,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
Wilda M.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120170633
Agency No. NY151055SSA
DECISION
On November 15, 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 November 4, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established that she was discriminated against based on race (African-American), age (50), disability (physical and mental) and reprisal (prior EEO activity) when she was subjected to non-sexual harassment beginning in April 2011 and continuing.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative, Grade 11 at the Agency's Springfield Avenue Field Office facility in Newark, New Jersey. On January 4, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), age (50), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was subjected to non-sexual harassment beginning in April 2011 and continuing. Her allegations include claims of harassment regarding work assignments, performance evaluations, awards, workplace communications, and disciplinary actions.
Complainant's first level supervisor was S1 (African-American, age 44 with no disabilities). In 2014, S1 was promoted and became Complainant's second level supervisor. S2 (African-American, age 48 with no disabilities) became Complainant's first level supervisor. The District Manager was D1 (Caucasian, age 59, no disability). These individuals were identified by Complainant as the individuals who subjected her to harassment.
S1 stated that she was unaware of Complainant's race, age, medical conditions or prior EEO activity. S2 was aware of Complainant's race and age, but was unaware of Complainant's medical conditions. D1 was aware of Complainant's race, but did not know her age or medical conditions. She was aware of Complainant's EEO activity based on her attendance at an alternative dispute resolution meeting in 2011, and knew Complainant had submitted an EEO complaint.
Work Assignments
Complainant stated that during July 2011, she sent an email to S1 stating that she felt mistreated because she receives the most difficult disability claims. She stated that those assignments take two to three hours to complete. She stated that other unidentified Claims Representatives, who are S1's friends, receive assignments which take fifteen minutes to complete. Complainant stated that her interviews take a long time due to the complexity of the interview and because she handles all of the issues of a client; whereas other employees will handle only one issue and make appointments for the client for other claims. She claims that she is harassed if she handles the claims in the same manner.
Complainant asserted that management deliberately assigned her claims from individuals who are seeking assistance with anxiety and schizophrenia, when she suffers from depression and anxiety. She claimed that when she asked for time to clean off her desk, she is given other interviews to conduct. In contrast, Complainant stated that Claims Representatives who are S1's friends have time to laugh and engage in casual conversations in the office.
S1 denied that she intentionally gives more complex cases to Complainant, or that there exists "fifteen" minute cases. She stated that all assignments are based on each employee's training, that she does not assess the claims for complexity or completion time, that she has been with the Agency for twenty-four (24) years, knows the employees, but does not consider them "friends" or people that she sees out of the Office. She stated that each Claims Representative is expected to handle all claims, and that each claims' complexity is based on the client. S1 also stated that she is unaware of the medical conditions or impairments of the clients who visit the office. She stated that Complainant is treated the same as all the other employees.
S2 stated that he treats all of the employees equally and that all assignments are distributed equally. He stated further that he does not know the client's condition, and, thus, he was unaware of Complainant's medical condition.
Performance Evaluations and Awards
Complainant avers that her progress reviews and performance evaluations have been deliberately downgraded each year since 2011. She states that she has "been eliminated from the award process since 2011. She asserts that S1's and S2's appraisals are inaccurate and have resulted in her not obtaining awards or promotions. She contends that she is not receiving proper training.
S1 stated that Complainant's performance reviews were not negative. She stated that Complainant received good reviews in some areas and needed improvement in other areas. S1 denies downgrading Complainant's evaluations. S1 stated that the evaluations provided to Complainant were based on Complainant's job performance. S1 stated that the appraisal process and the promotion process are not connected. S1 stated that Complainant engages in training updates with other staff on a regular basis.
S2 stated that he evaluated Complainant in 2015, and that it was the same rating as she had been receiving in recent years. He also stated that Complainant was a participant in her evaluation process, and that her evaluations were not negative.
Workplace Communications
Complainant stated that since 2011, management has talked to her in "stern tones" and in a degrading manner. She further claimed that management yelled at her in front of the public. She stated that each morning discussion was "like an interrogation." Complainant described one incident on August 11, 2011, where S1 pointed a finger at her to emphasize that she should show up on time at an early morning meeting the following day. Complainant acknowledged that she called her supervisor "twisted" in response. She claimed that management "wants to force her to retire."
S1 denied that she has ever verbally abused Complainant. Regarding the incident identified by Complainant regarding an early morning meeting, S1 denied pointing a finger at Complainant. According to S1, she approached every employee to request that they be in the training room by 7:55 a.m. the following morning and said the same thing to each employee in the unit. She stated that as she was walking away from Complainant, she heard Complainant shouting negative statements to her, but she did not respond to the comments.
S1 denied that Complainant was subjected to a hostile work environment or that she was trying to force Complainant to retire. She further denied that she has instructed Complainant's current supervisor, S2, to approach Complainant and behave in a condescending manner.
S2 also denied that he talks to Complainant in stern tones or a degrading manner and stated that it is not part of his personality to talk in such a manner to anyone in the office, including Complainant. He further denied that he has ever yelled at Complainant in front of the public or disrespected her.
Disciplinary Actions
Complainant stated that she was subjected to two erroneous suspensions (on November 30, 2011 and June 24, 2013) and two reprimands (on August 17, 2011 and October 25, 2011). She stated that she is afraid she will be fired or suspended again and "framed" for something she did not do. With regard to one disciplinary action, she explained that because of the harassment, she refused to go into an office to meet alone with her supervisor without her union representative. As a result, she received a one-day suspension in 2011. She averred that the individual who decided her Step 3 grievance acknowledged that there was a long history of verbal abuse by S1 towards Complainant.
With regard to another suspension involving an altercation Complainant had with a co-worker, Complainant asserted that the co-worker is S1's friend and that the co-worker "started it," and they were both suspended.
S1 stated that Complainant has received suspensions and reprimands based on legitimate reasons. She denied that she has ever tried to get Complainant to do something inappropriate. With regard to a one-day suspension in 2011, S1 stated that she was conducting the annual performance review and expectations discussion and asked Complainant to come to a private interviewing room as she had with other employees. She stated that Complainant refused to go despite two requests and a direct order.
S1 acknowledged that Complainant asked for a union representative to accompany her. S1 explained to her that a union representative was not permitted for any employee for routine performance reviews and expectations discussions. Nonetheless, Complainant continued to refuse to meet. S1 observed that Complainant served the one-day suspension on December 7, 2011.
With regard to an altercation between Complainant and a co-worker which led to a two-day suspension for Complainant in 2013, S1 denied that the co-worker had ever been a personal friend of hers. She observed that there was a verbal confrontation between Complainant and the co-worker at S1's desk and that both employees were yelling and shouting threats at one another. S1 stated that she separated the employees and sent both employees home.
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. 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 decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit a statement on appeal. The Agency's brief was in support of the findings in the final decision.
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").
ANALYSIS AND FINDINGS
Assuming, arguendo, Complainant established a prima facie case of discrimination regarding her protected bases, we find that the evidence does not support a finding that any of the alleged discriminatory incidents occurred as the result of Complainant's race, age, disability or in retaliation for her prior EEO activity. We find that the Agency provided legitimate, non-discriminatory reasons for its actions, and that Complainant did not provide persuasive evidence that the Agency's reasons for its actions were pretext for discrimination. Moreover, we find that the conduct about which Complainant complains consists of the normal activities and issues typically found in interactions between employees and supervisors in the workplace. Even assuming the incidents occurred as alleged, they are not sufficiently severe or pervasive to rise to the level of a hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final 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
__10/12/18________________
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.
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