Alden G.v.Social Security Administration

Equal Employment Opportunity Commission

Feb 15, 2019

EEOC Appeal No. 0120170849 (E.E.O.C. Feb. 15, 2019)

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

Alden G.,1
Complainant,

v.

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

Appeal No. 0120170849

Hearing No. 471-2015-00130X

Agency No. CHI-15-0111-SSA

DECISION

On December 19, 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
December 2, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

The issues presented are (1) whether the Equal Employment Opportunity Commission
Administrative Judge (AJ) properly dismissed Complainant’s request for a hearing, and
(2) whether the Agency subjected Complainant to harassment based on race and reprisal for prior
protected EEO activity.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Claims
Representative (Bilingual), GS-11, at the Agency’s Pontiac District Office in Pontiac, Michigan.

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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On December 15, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of race (Mexican American)2 and in reprisal for prior
protected EEO activity. In its acceptance letter, the Agency defined the accepted issues as
“[w]hether the Agency subjected Complainant to non-sexual harassment and/or hostile work
environment” on the bases of race and reprisal when:

1. on or about October 31, 2014, Complainant overheard a conference call wherein
management was attempting to solicit statements from the staff in order to label
him a bully;

2. on unspecified dates Complainant's co-workers have destroyed his work in order
to sabotage him;

3. on November 17, 2014, Complainant was notified that his request to be paid
administrative leave for the dates of November 3-5, 2014, had been denied; and

4. beginning in November 2014 and continuing, Complainant has been assigned
walk-ins and phone duty, and other employees are assigning appointments in his
name when he is not on the schedule for those particular assignments.

In a December 17, 2014, email to the Agency’s Area Director (AD), Complainant noted that he
had met with AD on December 12, 2014, and that AD had asked him to explain why he believed
that management had subjected him to a hostile work environment. Complainant asserted that he
had heard AD instruct managers to have employees write that Complainant was bullying them.
He also asserted that managers subjected him to unwelcome conduct and intimidation, used
coworkers to harass him, and failed to investigate his harassment complaints.

In his affidavit, Complainant stated that he participated in EEO activity as a union representative
when he helped other employees with their EEO complaints. He alleged that management
allowed other employees to treat him differently because of his union and EEO activities and that
other employees have made negative comments about him. He asserted that the different
treatment started two or three weeks after he began his union and EEO activities.

Complainant stated that he heard his name mentioned when he walked past an office on October
31, 2014, while his Operations Supervisor (S1), another Operations Supervisor (S2), the
Assistant District Manager (ADM), and the District Manager (DM) were on a conference call
with the Area Director (AD). He alleged that AD “was providing managers orders to solicit
derogatory statements from employees based on a report from” a September 2014 visit by
representatives of the Agency’s Office of Civil Rights and Equal Opportunity Office (OCREO).
According to Complainant, AD told managers that this would enable management to take action.

2 Although Complainant identified his race as “Mexican American,” the Commission recognizes
this term as an indication of national origin rather than race.
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Complainant also stated that, on August 5, 2014, a coworker (CW1) put Complainant’s name on
an appointment that was not his, complained that Complainant had left work, and, upon learning
that Complainant had not left, yelled at him. He asserted that, on August 15, 2014, another
coworker (CW2) “put up a slip for one of [his] claimants” and quoted the claimant as saying that
Complainant did not do his job. According to Complainant, he spoke with the claimant, she
denied saying that, and she submitted a written statement.

In addition, Complainant asserted that ADM verbally approved his request for administrative
leave for EEO purposes but later denied the leave. Complainant also asserted that managers and
other employees would assign appointments to him without his knowledge, that he would have
to check the monitor every 20 minutes, that this interfered with his adjudication time, and that he
was the only employee treated like this.

AD stated in his affidavit that two EEO investigators from the Agency’s Chicago Office
conducted training at the Pontiac facility in 2014 and that they submitted a report about the
facility. According to AD, 11 employees complained to the investigators that Complainant
harassed other employees, stole their lunches, was disrespectful to management and visitors, and
rarely worked. AD stated that the investigators asked him to have managers inform employees
that they should report inappropriate behavior to management and management would look into
the matter. He denied Complainant’s request to see the OCREO report because Complainant
“had no need to know.” He stated that he had a conference call with managers regarding the
report, that he told them to hold a staff meeting to address the complaints against Complainant
and to let employees know that they should come forward if they felt harassed, that managers
held the meeting, and that Complainant’s name was not mentioned during the meeting. He
denied telling managers to “solicit” statements about Complainant. AD stated that Complainant
sent him emails complaining about the alleged harassment and that he directed the District
Manager to investigate Complainant’s allegations. He was aware of Complainant’s EEO activity
because he received monthly reports from OCREO and saw Complainant’s name on a few
complaints.

DM similarly stated that he was aware of Complainant’s EEO activity. He estimated that
Complainant had three pending EEO cases of his own and was the representative for seven other
EEO cases. DM stated that he investigated Complainant’s harassment allegations and sent
Complainant a January 22, 2015, email stating that he had found no evidence to support the
allegations. He also stated that the October 31, 2014, conference call addressed the “numerous
complaints” contained in the OCREO report and that “[t]here was no request or order to obtain
statements from the staff to label anyone as a bully.” After Complainant alleged that an
employee had typed incorrect information on a screen, DM spoke with the employee and
determined that she was trying to provide information to help the next person who would
interview the claimant. DM stated that managers rarely approve administrative leave, that “EEO
time is duty time,” and that no other employees had received administrative leave for EEO
purposes. He could not recall any instances when Complainant had unnecessary appointments
assigned to him.

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ADM stated that managers discussed the OCREO report and how to handle matters raised in the
report during the October 31, 2014, meeting. Like DM, ADM stated that EEO time “is
considered regular duty time” and that no employees had received leave for EEO purposes. She
denied that Complainant verbally requested administrative leave for EEO purposes. According
to ADM, Complainant submitted a leave slip “for a leave period when he called into work” and
should have requested sick or annual leave. She was aware that Complainant had filed prior
EEO complaints and had served as a representative for other employees who filed complaints.

S1, who knew that Complainant had represented other employees in EEO matters, stated that
Complainant did not complain to him about alleged harassment. With respect to the October
2014 meeting, it was his understanding that, “if anyone felt threaten[ed] or bullied by
[Complainant], then we would like them to document it.” According to S1, he overheard the
conversation between Complainant and CW1 about putting Complainant’s name on an
appointment and told CW1 not to make assignments to other people.

S2 stated that, during the October 2014 meeting, managers “were advised that some serious
accusations had been made and in order to take action, we would need statements from the
employees making the accusations.” She did not recall that anyone had used the term “bully.”
She asserted that it was common for employees who performed “walk-in duty” to have
appointments assigned to them. She was aware of Complainant’s EEO activity.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.

During the hearing process, Complainant and the Agency entered a Stipulation and Protective
Order that stated, “Information provided by [the Agency] to Complainant and his representative
that is covered by this Stipulation and Protective Order, shall not be used by Complainant or his
counsel for any purpose except as necessary for the prosecution of the instant litigation.”
Complainant violated the Order when he used one of the Agency-produced documents as an
exhibit during an arbitration hearing on his termination from the Agency. In response to the
Agency’s Motion for Sanctions, Complainant acknowledged that he violated the Order but
argued that he needed to use the document for the arbitration. The AJ noted, however, that
Complainant had deliberately blacked out the text “CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER” from the document when he submitted it at the arbitration hearing.
She also noted that he had not requested a modification of the Protective Order to enable him to
use the document. Accordingly, the AJ granted the Agency’s Motion for Sanctions, dismissed
Complainant’s hearing request, and remanded the case to the Agency for the issuance of a final
decision pursuant to 29 C.F.R. § 1614.110(b).

In its final decision, the Agency found that Complainant did not show that the Agency subjected
him to unlawful discrimination. The Agency concluded that Complainant belonged to protected
classes and was subjected to unwelcome conduct. The Agency also concluded that Complainant
did not show that the conduct was related to his race. In addition, the Agency stated that
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Complainant’s actions as a union representative for other employees’ EEO complaints did not
constitute protected EEO activity. The Agency concluded, however, that “the record shows that
Complainant was involved in numerous EEO complaints of his own,” that “Complainant’s
previous complaint was resolved two to five months prior to the adverse actions in the instant
complaint,” and that his “prior EEO activity was recent enough to create a nexus between the
alleged conduct and his protected activity.” With respect to the October 31, 2014, meeting, the
Agency stated that “management merely holding a meeting does not affect Complainant’s
employment” and was not severe or pervasive. Similarly, the Agency concluded that, even if
CW2 entered erroneous information into the VIP system, such conduct was not severe or
pervasive. In addition, the Agency stated that, absent evidence of discriminatory intent, neither
the denial of leave nor the routine assignment of duties constitutes harassment. The Agency also
stated that CW1’s actions were not severe or pervasive. The Agency concluded that the
incidents at issue, even when considered as a whole and assumed to be true, did not rise to the
level of a hostile work environment.

Further, the Agency found that “management explained that the alleged harassment either did not
occur or was not severe or pervasive.” With respect to Complainant’s claim that management
solicited complaints against him, the Agency stated that the Chicago OCREO had received
complaints about Complainant and that managers asked employees to speak to them directly. In
addition, the Agency noted that DM stated that he investigated Complainant’s claim that CW2
tried to sabotage his work and that CW2 was only trying to input information that would help the
person who interviewed the claimant. The Agency also stated that administrative leave was not
intended for EEO work, that managers redistributed work when an employee was out, that S1
spoke with CW1 after Complainant told him that CW1 had assigned him work and yelled at him,
and that Complainant has not pointed to subsequent problems with CW1.

CONTENTIONS ON APPEAL

On appeal, Complainant states that the Agency terminated his employment illegally and that he
violated the Stipulation and Protective Order “for the health and safety of [his] family.” He
submits a copy of an arbitrator’s decision overturning the termination.

In response, the Agency argues that the AJ properly dismissed Complainant’s hearing request as
a sanction for violating the Protective Order. The Agency also argues that Complainant did not
establish that the Agency subjected him to a hostile work environment based on race or reprisal.

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,
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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

1. Dismissal of Hearing Request

The Commission’s regulations afford broad authority to Administrative Judges for the conduct of
hearings, including the authority to issue protective orders not to disclose information and to
sanction a party for failure without good cause shown to comply fully with an order. See 29
C.F.R. § 1614.109; EEO-MD-110, Chap. 7, § III.D.; Complainant v. Dep’t of Transp., EEOC
Appeal No. 0120123005 (June 13, 2014) (citing Brannon-Winters v. Dep’t of the Navy, EEOC
Appeal No. 01A51549 (Mar. 28, 2006)). Where a party fails to comply with an order of an AJ,
the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R.
§ 1614.109(f)(3). An AJ may: (1) draw an adverse inference that the requested information
would have reflected unfavorably on the non-complying party; (2) consider the requested
information to be established in favor of the opposing party; (3) exclude other evidence offered
by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party;
or (5) take other action deemed appropriate. Id.; EEO-MD-110, Chap. 7, § III.D.10.

Upon review, we find that it was not an abuse of discretion to dismiss Complainant’s hearing
request. Complainant was aware of the Agency’s Motion for Sanctions and had an opportunity
to respond to the Motion. He acknowledges that he violated the Stipulation and Protective
Order. As the AJ noted, Complainant did not request a modification of the Order. Instead, he
intentionally violated the Order. We find that the AJ properly dismissed Complainant’s hearing
request.

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.” 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.

To establish a claim of harassment, Complainant must show that: (1) he is a member of a
statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct
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involving the protected class; (3) the harassment complained of was based on the protected class;
(4) the harassment 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 to the employer. Humphrey v. U.S. Postal Serv., EEOC
Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser’s conduct should be
evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances.
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994) (Enforcement Guidance on Harris). The evaluation “requires careful consideration of the
social context in which particular behavior occurs and is experienced by its target.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).

Having considered the evidence of record, we find that Complainant has not shown that the
Agency subjected him to harassment based on race/national origin or reprisal.

Complainant has established that he is a member of protected classes and that he was subjected
to unwelcome conduct. He participated in protected EEO activity when he assisted other
employees with their EEO complaints and when he filed his own EEO complaints. EEOC
Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, at II.A.3.
(Aug. 25, 2016) (anti-retaliation protections cover individuals “who participate in the EEO
process in any way, including as a complainant, representative, or witness for any side”);
Milhado v. Dep’t of the Army, EEOC Request No. 05870174 (July 2, 1987) (individual whose
union activities included the representation of employees in EEO cases stated a claim of
reprisal). The Agency, in its final decision, acknowledged that there was a close temporal
proximity between Complainant’s prior EEO complaint and the actions at issue here.

We find that Complainant has not established that the actions at issue here occurred because of
his race/national origin or prior EEO activity. AD stated that employees complained to EEO
investigators that Complainant had harassed them and that the investigators asked AD to have
managers tell employees to report inappropriate behavior. Other Agency managers also stated
that October 31, 2014, meeting addressed the OCREO report, that the report contained
“numerous complaints” and “serious accusations,” and that managers were advised to have
employees make statements documenting accusations. S1 stated that he overheard the
conversation between Complainant and CW1 and told CW1 not to make assignments to other
people. DM stated that CW2 was trying to provide information to help the next person who
would interview a claimant, and S2 stated that it was common for employees who performed
walk-in duties to have appointments assigned to them. DM and ADM stated that time spent on
EEO matters is regular duty time and that employees do not receive administrative leave for such
purposes.

Complainant has not shown that the managers’ explanations are unworthy of credence or that
considerations of race/national origin or reprisal more likely motivated the Agency’s actions.
Although the temporal proximity between Complainant’s protected EEO activity and the
incidents at issue raises an inference of reprisal, the evidence is insufficient to support a
determination that the incidents occurred because Complainant engaged in EEO activity.
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Similarly, the evidence does not establish that the incidents occurred because of his race/national
origin. Complainant’s bare allegations, in the absence of supporting evidence, do not establish
the existence of race/national origin discrimination or reprisal.

Furthermore, we find that a finding of discriminatory harassment is precluded based on our
determination that Complainant did not show that the Agency’s actions were motivated by
discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No.
01982923 (Sept. 21, 2000). Accordingly, we find that Complainant has not demonstrated that
the Agency subjected him to harassment based on race/national origin or protected EEO activity.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFIRM the Agency’s final decision and its finding of no
discrimination.
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

February 15, 2019
Date