Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Apr 29, 2015

01-2012-3535-0500 (E.E.O.C. Apr. 29, 2015)

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

,
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120123535

Agency No. BOS-11-0444-SSA

DECISION
On August 30, 2012, Complainant filed an appeal from the Agency’s August 2, 2012 final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791
et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621
et seq

. Our review is de novo. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Case
Technician, GS-986-8, at the Agency’s work facility in New Haven, Connecticut. On May 11,
2011, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated
against her on the bases of her race (African-American), religion (Seventh Day Adventist),
color (Black), disability, age (48) and in reprisal for her prior EEO when:

1. From March 18 – 30, 2011, management created a hostile work environment and
harassed Complainant by restricting Complainant from verbally communicating with
coworkers.

2. On April 21, 2011, Complainant’s Supervisor issued Complainant an official
reprimand.

3. In September 2011, management attempted to hinder Complainant from arranging
time to meet with the EEO investigator, citing the following incidents:
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(a) As of September 13, 2011, the Hearing Office Director would not provide a
telephone number for the EEO investigator to call in order to conduct a
conference call for Complainant’s interview. The Hearing Office Director did
not respond as to whether Complainant would be given time off for the
interview.

(b) The New Haven Office of Disability Adjudication and Review management staff
would not release Complainant from duty in order for her to speak with the
investigator. Instead, management assigned her to reception duty.

(c) On September 29, 2011, after Complainant’s representative asked management
to release Complainant from duty on October 3, 2011, to speak with the
investigator, management asked about the nature of the meeting. Neither
Complainant nor her representative heard back from management after advising
them that conditioning the employee’s release was a violation of her privacy.

4. On October 20, 2011, the Group Supervisor singled out Complainant and another
African-American employee when she said that they have been talking for 20 to 25
minutes, while the Hearing Office Director hovered and gave them what was
characterized as dirty looks.

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). 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 Agency determined that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. With regard to claim (1), the Agency stated that Complainant’s
Supervisor met individually with Complainant and other employees to inform them that
management would intervene in coworker discussions that lasted longer than fifteen minutes.
This policy was adopted in response to complaints received by management from employees
whose work was being disrupted by other employees engaging in non-work-related discussions
on the floor. The Hearing Office Director instructed Complainant’s Supervisor to be more
visible on the floor to ensure that all staff were working and not engaging in non-work-related
conversation.

According to Complainant, commencing March 18, 2011, the Supervisor restricted
Complainant from verbally communicating with her coworker. Complainant stated that her
Supervisor would tell her to stop talking or to return to her desk whenever she attempted to
verbally communicate with her coworkers. The coworker at issue asserted that only she and
Complainant were directly restricted from talking. Complainant stated that on March 30,
2011, the coworker was in her cubicle so that she could instruct the coworker on how to access
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consultant exam paperwork. Complainant claimed that her Supervisor told the coworker she
was not supposed to be there and to return to her desk. Complainant stated she explained that
they were discussing work, and the Supervisor apologized. The coworker stated that she
stopped communicating with Complainant in the office after March 30, 2011, because she felt
targeted by the Supervisor. Complainant’s union representative during the relevant period
stated that she has observed Complainant engaging in non-work-related discussions with
coworkers for long periods of time. According to the union representative, she has noticed the
Supervisor tell Complainant and other employees to get back to work. The union
representative asserted that the Supervisor restricted the entire staff’s verbal communications.

Another coworker stated that in March 2011, management implemented a policy of no talking
between coworkers and informed staff that they could only talk during breaks in the break
room. This coworker stated that this policy applied to both work and non-work-related
conversations. The coworker further stated that the Supervisor was always on the floor
searching for people who were talking and telling them to return to work.

With respect to claim (2), the reprimand issued to Complainant for engaging in unprofessional
conduct dealt primarily with conduct on April 6, 2011 and April 8, 2011. On April 6, 2011,
the Supervisor counseled Complainant about coworkers complaining that she was talking about
them. Complainant responded “If they aren’t going to write it down, please don’t call me in
here again because I don’t want to hear any he said, she said stuff.” Complainant had been
accused of standing near the cubicles of two coworkers taking notes about them. The Agency
noted that Complainant acknowledged taking the notes but stated she was not near their
cubicles. Complainant also denied uttering threatening statements such as “Case Technicians
gotta go.” Complainant claimed that four Caucasian coworkers took notes and received no
discipline and the aforementioned African-American coworker claimed that Complainant was
taking notes because Caucasian coworkers were breaking the no-talk rule but not being
counseled. The Second-Level Supervisor stated that during the April 6 meeting, Complainant
became angry and exhibited loud and discourteous behavior toward management, and began
making comments, which could be regarded as threatening. According to the Second-Level
Supervisor, Complainant stated loudly she’d “take care of this” while pounding her fist, and
she stated Complainant wanted to know who had complained and stated she wanted the person
to put it in writing. According to the union representative, Complainant grew angry and loud
during the April 6 meeting and became louder when the Supervisor and the Second-Level
Supervisor told her to tone it down.

A meeting was held on April 8, 2011, because everyone was complaining about the no talking
regulation. The Chief Judges who attended the meeting stated that Complainant burst into
laughter when she was addressing the important nature of what the office does for members of
the public who are in such desperate straits. The Second-Level Supervisor asserted that
Complainant laughed out loud at the Chief Judge. The Supervisor stated that Complainant
laughed out loud during the Chief Judge’s comments regarding the limitation on non-work-
related conversations. According to Complainant, she did not think she was being
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disrespectful to the Chief Judge as she laughed at comments suggesting the Judge was there for
a specific coworker rather than all of them.

As for claim (3), Complainant claimed that her representative sent an e-mail to Agency
officials requesting that Complainant be released from duty on September 13, 2011, and
provided with a telephone number in a private area, so that Complainant may use that time to
speak with the investigator on the telephone. Complainant asserted that her representative sent
four e-mail requests before the Second-Level Supervisor replied with information on the room,
granting the request for leave but did not include a phone number. The Supervisor stated that
Complainant and her representative have used a certain telephone line for EEO-related matters.
The Supervisor noted that the reception desk schedule is planned a month in advance and
Complainant was not intentionally assigned to reception duty just because she was scheduled to
be released from duty on September 13, 2011. The Second-Level Supervisor stated that she
was under the impression that the representative was requesting the room number and not the
telephone number because she did not know what the abbreviation “tn” meant.

With respect to claim (4), Complainant claimed that the Second-Level Supervisor had walked
by Complainant’s coworker’s desk twice, giving Complainant and the coworker dirty looks.
The Supervisor subsequently called Complainant into the office after being informed by the
Second-Level Supervisor that Complainant and the coworker had been talking for 20 to 25
minutes. Complainant claimed that she felt singled out and the coworker stated that the
conversation was more like ten minutes rather than 25. Complainant argued that White
employees and employees under the age of 40 are not held to the same standards. Complainant
stated that she thought her disability was a factor in this claim because the Supervisor informed
her that information related to her disability was in her personnel file.

The Agency rejected Complainant’s contention that employees outside of her protected classes
were treated more favorably than her. The Agency stated that almost everyone interviewed as
to claim (1) stated that there was a work rule implemented in March 2011, such that none of
the support staff were to have private conversations on the work floor. They noted that the
policy applied to everyone and that many employees complained about it. With respect to
claim (4), the Agency stated that two employees outside of Complainant’s protected classes
stated that the Second-Level Supervisor directed them to end a five-minute personal
conversation they were having and get back to work. The Agency stated that Complainant
failed to prove that her version of the ten or 25-minute conversation was necessarily what
occurred. As for claim (2), the Agency noted that Complainant’s union representative’s
testimony was consistent with management’s description of the April 6 meeting. The Agency
determined that Complainant did not establish that the Agency’s explanation for issuing the
reprimand was false. The Agency further determined that Complainant has also failed to
establish that the conduct at issue was sufficiently severe or pervasive to create a hostile work
environment.

With respect to claim (3a), the Agency determined that management did not interfere with
Complainant’s use of official time. The Agency stated that the failure to provide a telephone
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number was neither intentional nor interference as the Second-Level Supervisor did not realize
what was requested and Complainant and her representative had previously used the same
room and were able to use the telephone in that room to dial to the investigator. As for claim
(3b), the Agency stated the assignment of Complainant to the front desk was made a month
before the request for use of official time on that date. In terms of claim (3c), the Agency
determined that it was reasonable for the Supervisor to inquire why Complainant and her
representative needed to be released from duty for eight hours on October 3. The Agency
reasoned that is a large amount of time to request and the Supervisor needed to determine
whether granting the requested release from duties would interfere with Complainant’s ability
to accomplish her assigned work. Thereafter, Complainant filed the instant appeal.

ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant set forth a prima facie case of discrimination
under the alleged bases with respect to the matters at issue. The Agency explained as to claim
(1) that it instituted a policy of management intervening to prevent employees from having
discussions beyond fifteen minutes. According to the Agency, this policy was instituted after
there were complaints that work was being disrupted by non-work-related discussions. With
respect to claim (2), the Agency stated as to the Letter of Reprimand that Complainant had
pounded her fist during a meeting with supervisors and exhibited loud and discourteous
behavior, laughed inappropriately during the Chief Judge’s remarks, and been observed taking
notes on her coworkers’ conversations. As for claim (3a), the Agency stated that there was no
intent not to provide Complainant with the telephone number as Complainant had used it
before and that Complainant was granted her request for leave to confer with the investigator.
The Agency asserted that the assignment of Complainant to front desk duty was made one
month before Complainant’s request for official time. As for claim (3c), the Agency stated
that it acted appropriately in inquiring of Complainant and her representative the nature of the
meeting when she requested eight hours off. As for claim (4), the Agency stated that
Complainant and a coworker were talking for 20-25 minutes. We find that the Agency has
articulated legitimate, nondiscriminatory reasons for its actions in the matters at issue.

Complainant maintains that the Agency’s explanation is pretext and that she was subjected to
discriminatory harassment. With regard to claim (1), Complainant maintains that she was
singled out when the Supervisor intervened in her conversations with a coworker. However,
Complainant has not refuted the Agency’s explanation that the policy of limiting conversations
was applied to everyone and was developed for the purpose of minimizing disruption and
increasing productivity. With respect to claim (2) and the reprimand that she received,
Complainant has not established that she did not engage in disrespectful conduct toward her
supervisors at the April 6 meeting. Complainant also has not proved that she did not laugh out
loud inappropriately at the Chief Judge’s remarks. With regard to her taking notes about
coworkers engaged in conversations, Complainant claimed that four Caucasian coworkers took
notes without being disciplined. However, we note that the union representative stated that
Complainant acknowledged taking notes and that she had been doing it for years. Complainant
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has not presented persuasive evidence in support of her position that she was discriminated
against when she received the reprimand.

In terms of the events at issue in claim (3), we find that Complainant has not shown there was
any discriminatory intent in the Agency’s delay in responding to her representative’s e-mails
concerning the phone number and receiving time off to confer with the investigator. We also
discern no discriminatory intent in Complainant not being released from front desk duty to
meet with the investigator given that the assignment was made a month in advance. The
Agency was also reasonable, and we see no evidence of discriminatory intent when inquiry
was made as to why Complainant needed to be released from duty for eight hours when she
was meeting with the investigator. As for claim (4) and the alleged singling out of
Complainant and an African-American coworker for talking from 20 to 25 minutes, the
evidence suggests that management officials did not single them out due to their race or color.
Two individuals outside of Complainant’s protected groups stated that the Second-Level
Supervisor directed them to stop having a five-minute personal conversation and get back to
work. Upon review of the record, we find that the evidence does not establish that the Agency
subjected Complainant to a discriminatory hostile work environment or any form of disparate
treatment under the alleged bases.

CONCLUSION
The Agency’s determination in its final decision that no discrimination occurred is
AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
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Commission, P.O. Box 77960, Washington, DC 20013. 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 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
April 29, 2015