Brenton W.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionNov 16, 20180120171969 (E.E.O.C. Nov. 16, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brenton W.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120171969 Hearing No. 440-2016-00150X Agency No. CHI-15-0846-SSA DECISION 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 final order 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Probationary Senior Case Technician (SCT), GS-7, at the Office of Disability Adjudication and Review in Chicago, Illinois. 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 Complainant filed his appeal prematurely after receiving a copy of the Administrative Judge’s decision dated April 27, 2017. The appeal was cured upon the Agency’s issuance of its June 6, 2017 final order. 2 0120171969 Complainant averred that he experiences complications from several conditions including chronic adjustment disorder, attention-deficit hyperactivity disorder (ADHD), major depressive disorder, and osteoarthritic joint pain. Investigative Report (IR) 91-93; Agency’s Motion for Summary Judgment (MSJ), Exhibit (Ex.) A (Complainant’s Deposition) 56-57. Complainant was hired for his position in September 2014. Between September 2014 and February 2015, he received on-the-job training and between February 23, 2015 and March 6, 2015, he attended the Agency’s official training. His job responsibilities included scheduling cases, organizing case files, and monitoring hearings for administrative law judges (ALJs). The Group Supervisor (GS) averred that all employees in the scheduling unit were responsible for the same duties and held to the same performance standards. GS also averred that Complainant was initially assigned to schedule dockets for three ALJs, but his workload was reduced to two ALJs during his training. At the conclusion of his formal training, his workload was expanded back to three ALJs. IR 123. Beginning on November 14, 2014, Complainant exhibited ongoing performance deficiencies. GS averred that he had instructed Complainant to finish his inputs for the month of February in the case processing management system (CPMS), but when GS checked for those inputs on November 14, 2014, he was unable to locate them. IR 243. On November 18, 2014, ALJ1 notified GS and Complainant that her request for a medical expert for an upcoming hearing had not been fulfilled, and the following day, GS had to follow up with Complainant twice to check on the status of the ALJ1’s request. IR 244. On November 19, 2014, GS notified Complaint that he had failed to send out several hearing notices and was deficient in his completion of electronic folder transactions. IR 248-52. GS stated further that he had received a second complaint from ALJ1 concerning Complainant’s failure to contact unrepresented claimants. IR 253. On November 26, 2014, Complainant sent an e-mail asking employees to sign an online petition to protect veterans’ benefits. Believing that Complainant’s action violated the Hatch Act, GS notified Complainant immediately that such solicitations were improper in the workplace. IR 254. On December 3, 2014, GS notified Complainant that he had been sending emails for medical expert contact information updates to the wrong recipients. IR 255. On December 6, 2014, GS informed Complainant via email that he had scheduled cases for ALJ2 outside of the parameters for scheduling and now needed to send out waiver notices. IR 257. On December 13, 2014, a Clerk Reader emailed Complainant informing him that she had corrected errors he had made when scheduling cases with multiple claims. IR 258-60. GS had ordered Complaint to complete his scheduling for March 2015 by December 15, 2014, but as of December 17, 2014, Complainant’s inputs for March 2015 had not been completed. IR 267. On January 24, 2015, GS identified six cases that Complainant had processed incorrectly since December 16, 2014. IR 263, 291, 194. As of February 23, 2015, the day Complainant was scheduled to begin his formal training, GS notified Complainant that he had 67 overdue items which was unacceptable and demonstrated a lack of control over his workload. IR 299, 306. 3 0120171969 On March 23, 2015, GS notified Complainant that many of his assigned cases had the wrong employee name listed in the CPMS and asked Complainant to correct this error before he left for the day, an issue that had been brought to Complainant’s attention several weeks earlier. IR 334- 39. On March 25, 2015, GS sent Complainant a high-priority work directive to prioritize aged cases prior to scheduling non-aged cases. IR 340. On April 6, 2015, GS emailed Complainant that he needed to ensure that his inputs into the CPMS were accurate and to make any needed corrections by close-of-business the following day. IR 344. On April 11, 2015, GS notified Complaint that he failed to complete a list of electronic folder transactions that should have been completed by the end of the previous week. IR 349. On April 18, 2015, GS informed Complainant that he could not put cases in the CPMS without his direct authorization; that Complainant had previously been made aware of the need for GS’s authorization; and that Complainant was making inputs for August, but should not have been making inputs into CPMS beyond July at that point. IR 353. On April 15, 2015, GS prepared Complainant’s performance evaluation which indicated that although Complainant had completed his on-the-job training, he had ongoing performance issues; including tardiness, problems completing work accurately, not following established scheduling procedures, ineffective support to co-workers and claimants, inconsistently adjusted workload priorities, and not completing assignments in a timely manner. The evaluation noted that GS had to reassign some of Complainant’s work to his coworkers. IR 372. The Hearing Office Director (HD) signed off on the performance appraisal as the reviewing official. On June 29, 2015, the Acting Chief Judge (ACJ) issued Complainant a notice of termination. The ACJ was GS’s immediate supervisor and was aware that GS had had several discussions with Complainant regarding deficiencies in his performance. The notice stated that the termination was effective as July 12, 2015, and was based on Complainant’s unsatisfactory performance and conduct. Specifically, the Notice detailed Complainant’s failure to schedule aged inventory cases in a timely manner, obtain necessary experts, burn CDs and generate invoices. IR 139, 152, 219- 25. On September 15, 2017, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), religion (Christian), and disability (chronic adjustment disorder, attention-deficit hyperactivity disorder, major depressive disorder, and osteoarthritic joint pain.) by: 1. Failing to provide him with a reasonable accommodation. 2. Subjecting him to harassment between January 2015 and July 12, 2015. 3. Terminating his employment during his probationary period on July 12, 2015. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. 4 0120171969 Over Complainant's objections, however, the AJ assigned to the case granted the Agency’s October 6, 2016, motion for a decision without a hearing and issued a decision without a hearing on April 27, 2017. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that he has established that he was subjected to discrimination and a hostile work environment. Further, Complainant argues that he did not receive sufficient training and was held responsible for perceived shortfalls, mistakes, and failures. Complainant claims that Agency officials unjustly held him responsible for incomplete tasks to build a false case about his performance. Complainant alleges that management officials overloaded him, intimidated him, and unfairly evaluated him. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine†if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material†if it has the potential to affect the outcome of the case. In the instant case, we concur with the AJ’s finding that no genuine issue of material fact exists with respect to any of the claims raised in Complainant’s complaint. Denial of Reasonable Accommodation Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result in an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002). 5 0120171969 This obligation arises as soon as the Agency knows or reasonably should know that the employee is disabled. See Werner A. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120162371 (Sept. 6, 2018) citing Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008). Complainant claims the Agency denied his request for a reasonable accommodation of his disability in April 2015, but also admits that he did not make a specific request for a reasonable accommodation of his disability, but instead requested workload assistance. MSJ, Ex. A 77-80. Complaint further testified that he did not have specific recollection of ever discussing his disabilities with GS, but he assumed GS was aware of his disabilities because he was hired under a disabled veterans program. MSJ, Ex. A. 83-85. GS stated that he was aware that Complainant was a disabled veteran but was not aware of his disability because he never discussed it with Complainant. IR 111. GS admitted that he received medical documentation after Complainant’s hospitalization, which noted that Complainant was diagnosed with high blood pressure. However, those documents did not include any limitations or medical restrictions for Complainant, or any other information from which the need for a reasonable accommodation could be assessed. IR 111-12. GS further testified that Complainant was able to perform the essential functions of his position without accommodation. GS also testified that Complaint never made any request for an accommodation to him and that he, GS, never observed that any accommodations were necessary. IR 112. We concur with the AJ that Complainant did not present evidence sufficient to establish either that he needed a reasonable accommodation to perform the essential functions of his job or that the Agency failed to provide him with one. Hostile Work Environment Next, we move on to Complainant’s claim of discriminatory harassment. To establish a claim of harassment Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his statutorily protected classes; (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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [Complainant’s] employment and create an abusive working environment.†Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). In support of his claim, Complaint identified the following incidents and comments: increased workload imposed by GS; GS’s belittling his ideas to improve the Agency’s databases; GS allegedly telling him to get the hell out of his office when he received a call during their meeting; GS telling Complainant that he was going to use and abuse him during unit meetings; GS sending Complainant a picture of a boxing cat captioned, “Bring it on;†GS’s failure to acknowledge his disability or request for a reasonable accommodation; and GS making comments about the Bible verses Complainant had posted in his cubicle, including asking if he expected the verses to help him. Complainant also stated that GS told him that the “man upstairs did not have his back†and that he was “living in hell.†IR 98-103. 6 0120171969 Complainant added additional incidents in support of his harassment claim, including: not receiving credentials or travel vouchers and having his written request for a reasonable accommodation confiscated when he was out on administrative leave just prior to his termination. Complainant never provided any specific dates for the alleged incidents of harassment. IR 101-02; MSJ, Ex. A 74-75; MSJ, Ex. D – Complainant’s Interrogatory Responses at ¶¶ 3, 7. Even assuming that Complainant established that the alleged incidents were sufficiently severe or pervasive to establish a hostile environment, Complainant has failed to show that in taking the actions that comprise his harassment claim, Agency officials relied on considerations of his protected classes. As to his workload, GS averred that during his training, Complainant’s workload had actually been decreased to two ALJs while his fellow SCTs were assigned to cover three ALJs. IR 123. To the extent that GS was “nitpicking†regarding Complainant’s performance, the record does show that GS communicated with Complainant on at least forty occasions regarding his performance problems. The emails and memoranda reflect GS’s concern that Complainant was not meeting his performance standard. IR 113-17, 120, 127. As to the boxing cat image, GS averred that he shared the image with Complainant because both of them had boxed while they were in the military. Complainant had never told him that he found the image offensive. IR 125; MSJ, Ex. E. GS denied making other comments that Complainant attributed to him, such as the “use and abuse†comment. IR 124. Complainant admitted that some of the comments were made as a joke and were not accompanied by any references to his protected classes. MSJ, Ex. A 68-69, 74-75. When asked why he believed that the alleged harassment occurred because of his race, sex, religion, or disability, Complainant averred individuals outside of his protected classes were treated more favorably. IR 101-02. Beyond his own assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents that expose any weaknesses, inconsistencies, or contradictions in GS’s explanations for the various incidents to such an extent that a reasonable fact finder could rationally find those explanations unworthy of credence. See Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). Since Complainant cannot show that the conduct at issue was based on discriminatory animus, his harassment claim must inevitably fail. Disparate Treatment Finally, we address Complainant’s claim of disparate treatment in connection with his termination. 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, 802 (1973). As a first step, Complainant would normally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). 7 0120171969 The prima facie inquiry may be dispensed in this case, however, since GS articulated legitimate and nondiscriminatory reasons for Complainant’s termination, namely his deficient performance during his probationary period as documented in his performance appraisal, the letter of termination dated June 29, 2015, and the memoranda and emails documenting those deficiencies and GS’s efforts to correct them. IR 219-368. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation for terminating him is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 256 (1981). When asked by the EEO investigator why he believed that his termination was motivated by unlawful considerations of his race, sex, religion and disability, Complainant repeated his assertion that female employees, non-African-American employees, and employees of different religious persuasions than he were treated fairly and he was not. IR 98-99. Yet he testified at his deposition that he was not aware of any other employee at the Agency with a different sex, race, religion, or who did not have disabilities that was treated differently than him with respect to his termination. MSJ, Ex. A 162-63. Complainant also testified that GS never referenced his race, sex, religion, or disability during his employment. MJS, Ex. A 70, 83-86, 88-89, 95. In view of these admissions, and of the extensive documentation of his performance deficiencies by GS, we concur with the AJ that Complainant failed to establish the existence of a discriminatory motive on the part of the management officials. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. 8 0120171969 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. 9 0120171969 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 November 16, 2018 Date Copy with citationCopy as parenthetical citation