Christine Q.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Apr 30, 2019

2019000072 (E.E.O.C. Apr. 30, 2019)

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

Christine Q.,1
Complainant,

v.

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

Appeal No. 2019000072

Agency No. CHI-17-0566-SSA

DECISION

On October 3, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s February 6, 2018 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as an Attorney Advisor, GS-12, at the Agency’s
Office of Disability Adjudication and Review (ODAR) in Livonia, Michigan.

On June 15, 2017, Complainant filed a formal EEO complaint alleging the Agency discriminated
against her:

1. based on her religion (Buddhism), when on April 15 - 16, 2017, management cancelled
any overtime for the entire Livonia, Michigan office of the Office of Disability
Adjudication and Review (ODRA) during the Easter holiday weekend; and

2. when beginning April 15, 2017 and continuing, named managers retaliated against her
for initiating the EEO complaint process regarding claim 1.

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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After the investigation of the formal complaint, Complainant was provided with a copy of the
report of the investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond. On June 1, 2017, the Agency issued the instant final decision finding
no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment: Claim 1

A claim of disparate treatment2 is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether complainant has shown by a preponderance of the evidence that the
agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).

Regarding claim 1, Complainant, an Attorney Advisor with ODAR, asserted that on April 15 - 16,
2017, management cancelled any overtime for the entire Livonia, Michigan office of ODRA
during the Easter holiday weekend. Complainant stated that generally, pursuant to weekend
overtime policy, she submits an overtime request on Friday for Saturday and/or Sunday.
Complainant indicated there has never been a denial of her request when overtime was available.

2 In her brief submitted on appeal, Complainant made clear that she is only alleging disparate
treatment and not disparate impact with regard to claim (1).
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Complainant stated, however, Livonia ODRA management cancelled overtime for April 15- 16,
2017, due to those days being Easter holiday weekend. She claimed that management’s decision
contravened Federal anti-discrimination laws and Agency’s employment policies against religion
discrimination.

Based on the evidence developed during the investigation, we find that responsible management
witnesses articulated legitimate, non-discriminatory reasons for the disputed action.

The Hearing Office Director (Catholic), also Complainant’s second-line supervisor, stated that
overtime (OT) is an issue “that is entirely within management’s discretion. It can be cancelled,
not offered, or withheld for a variety of reasons. An employee does not have a right to overtime.”
The Director explained that overtime was not offered for the Easter weekend “so [overtime] was
never cancelled. It was not offered for two reasons. First, there were no members of management
available to supervise and assist. Second, there was poor production during OT the weekend
before. Management believed that employees were burning out and that they required a break.”

The Chief Administrative Law Judge (Baptist), also Complainant’s third-line supervisor,
explained that the Hearing Office Director and Group Supervisors handled overtime. The Chief
Administrative Judge stated that when “overtime is offered by the Region, when we have adequate
work, our office offers overtime, employees sign up for overtime; and work is assigned to be
performed on overtime.” He stated that overtime was not offered for the Easter weekend because
management noticed a decrease in production on weekend overtime, “due to burnout, and
management was not available. All employees were treated the same because no employees were
offered overtime.”

After careful review of the record, we conclude that Complainant failed to prove, by a
preponderance of the evidence, that management’s explanations for the disputed actions were a
pretext for discrimination based on religion. While overtime was not offered on a weekend that
was a Christian holiday, management stated two reasons for not offering overtime that weekend –
there were no managers available to supervise and there had been a decrease in productivity the
weekend before and management sought to give employees a break. It is clear that all Livonia
employees, regardless of their religion, were denied the opportunity to work overtime on the
weekend in question. We note that this is not a case where Complainant is alleging overtime was
cancelled for a Christian religious observance, but she was forced to work overtime during a
Buddhist religious observance. Complainant also argues on appeal that she was treated differently
than Attorney Advisors in other Agency locations because only the Livonia management cancelled
overtime that weekend. However, this mitigates against her discrimination claim as differences in
working conditions by geographic location is not protected by Title VII under a disparate treatment
analysis.

Hostile Work Environment: Claim 2

Complainant also alleged that after she sought EEO counseling on the matter described above in
claim 1, two members of management (the Hearing Office Director and the Chief Administrative
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Judge) retaliated against her. Complainant contends the two managers made “slanderous”
comments against her to the EEO counselor and treated her differently than other employees. She
contended that she was treated rudely after she sought EEO counseling in April, was required to
read and respond to work-related emails during her breaks and lunch, and her work was being
more carefully scrutinized than that of other decision writers in the office. As examples,
Complainant alleged that one two occasions the Chief Administrative Judge asked her if they
needed a witness to their conversation, and on another occasion rudely interrupted her during a
conversation. Both managers named flatly denied any differential treatment, harassment or change
in behavior towards Complainant. Beyond her general assertions of mistreatment, Complainant
did not provide further details or proffer testimonial or documentary evidence to support her claims
of retaliatory animus. In sum, we conclude that Complainant simply failed to meet her burden of
proving that she was subjected to harassment or other negative treatment in retaliation for raising
claim 1 in the EEO complaint process.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination or unlawful retaliation 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.
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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

April 30, 2019
Date