Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionJan 29, 20140120122072 (E.E.O.C. Jan. 29, 2014) Copy Citation 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. 0120122072 Hearing No. 420-2010-00123X Agency Nos. ATL-10-0915-SSA; ATL-11-0055-SSA DECISION On April 12, 2012, Complainant filed an appeal from the Agency’s March 9, 2012, final decision concerning her equal employment opportunity (EEO) complaints 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Teleservice Representative at the Agency’s Birmingham Teleservice Center (BTSC) located in Birmingham, Alabama. From February 2010 until the end of September 2010, the Unit Supervisor was Complainant’s first line supervisor. Complainant’s second line supervisor was the Section Manager. Complainant’s third line supervisor was the BTSC Deputy Director. On October 1, 2010, Complainant filed an EEO complaint (ATL-10-0915-SSA) and on November 8, 2010, Complainant filed a second EEO complaint (ATL-11-0055-SSA). In those complaints, consolidated for processing, Complainant alleged that the Agency discriminated against her and subjected her to harassment on the bases of race (African-American), age (over 40), and in reprisal for prior protected EEO activity when: 1. On September 1, 2010, Complainant was charged with being absent-without-leave (AWOL) during the following timeframes: a. From 9:15 AM – 9:40 AM for not being at her desk; 0120122072 2 b. From 1:30 PM – 1:50 PM for not being at her desk; and c. From 3:45 – 4:00 PM for being on the phone. 2. On October 22, 2010, Complainant’s manager humiliated her when he stood in the middle of the unit and hollered at her, “And I want you to get back on the phone.” This occurred after a meeting Complainant had conducted with her manager to discuss a “write-up” that she refused to sign. 3. On October 25, 2010, management rated Complainant at a level “3” for Job Knowledge on her Final FY10 Performance Appraisal. 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 EEOC Administrative Judge (AJ). Complainant requested a hearing but the AJ denied the hearing request on the grounds that Complainant had not complied with his Acknowledgment and Supplemental Order. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency’s final decision found Complainant failed to prove discrimination as alleged. ANALYSIS AND FINDINGS 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. (November 9, 1999) (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”). We note that on appeal, Complainant does not challenge the AJ’s decision to dismiss her hearing request. In addition, we note Complainant does not challenge the definition of the issues identified in the present complaint. Moreover, we find the record in the present case was adequately developed. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Fumco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). 0120122072 3 Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens , 460 U.S. 711, 715-16 (1983). In the present case, the Agency articulated legitimate, nondiscriminatory reason for its actions. With regard to issue (1), complainant claimed that she was subjected to discrimination and harassment when she was charged AWOL for three periods on September 1, 2010: 9:15 a.m. – 9:40 a.m.; 1:30 p.m. – 1:50 p.m.; and 3:45 p.m. – 4:00 p.m. With regard to the first two AWOL charges, Complainant stated that, if the times were not her scheduled break or lunch, then the absences from her desk must have been due to “personal reasons,” such as use of the bathroom. Complainant disputed the last AWOL entry and asserted that she was at her desk working. Complainant also stated that the Unit Supervisor did not monitor other employees work and break habits. Specifically, Complainant stated that both White and Black coworkers went out and on smoke breaks and she claimed the Unit Supervisor did not say anything to them. Specifically, Complainant noted that Coworker 1 (Black and over 40) and Coworker 2 (Black and over 40) both left their desks to go outside to smoke whenever they wished. In her affidavit, the BTSC Deputy Director explained that employees are entitled to two fifteen-minute breaks during a seven-hour work day. She stated that breaks in the Mega TSCs were scheduled on an individual basis for each employee that worked the 800 number workload. The Deputy Director stated that employees were required to notify management when they took breaks outside their scheduled period. The Deputy Director also stated that employees were entitled to a thirty-minute lunch period and that employees that worked on the 800 number workload had established lunch periods within their respective units. The Deputy Director stated that employees were required to notify management when they took lunch outside of the established scheduled lunch period. The Deputy Director stated that the Unit Supervisor was required to observe the work habits of his employees to ensure compliance with Agency rules and regulations. The Unit Supervisor denied monitoring Complainant more closely or treating her less favorably than others. He stated that on the day in question, Complainant signed in at 9:00 a.m. He explained that filing time was between 9:00 a.m. – 9:15 a.m. and that beginning at 9:15 a.m. Teleservice Representatives were expected to answer calls. The Unit Supervisor stated he was doing his regular rounds of welcoming employees and making sure they were already signed in and working on the phone. He stated Complainant was not at her desk, it was not her regularly scheduled break, and when he later asked her where she was, she stated she “was not sure what could have happened” and mentioned perhaps she was using “personal 0120122072 4 time.” He noted she did not notify any manager of any problems, personal needs, nor request time off the phone. In addition, he stated she did not say that she was at the restroom. With regard to the second incident of AWOL, the Unit Supervisor stated that Complainant’s lunch break was from 1:00 p.m. – 1:30 p.m. He stated that he passed by her work area at 1:43 and she was not there and it was not her scheduled break time. He stated that he passed by Complainant’s area at 1:50 and she was then returning to her workstation. The Unit Supervisor stated that Complainant did not inform management of any delays either before or after her lunch. The Unit Supervisor stated that when he asked Complainant about the incident, she stated she “was not sure what could have happened,” and perhaps she could have been using “personal time.” He stated Complainant did not inform him that she was at the restroom. With regard to the third incident of AWOL, the Unit Supervisor stated that this incident occurred during duty hours and after Complainant’s afternoon break. He stated that he passed by Complainant’s desk and noticed that she was not answering the national number and he explained that he returned to his desk to see whether there were notes indicating the need for personal time. The Unit Supervisor advised that employees were instructed to tell management of such time due to the fact that it was their duty to answer national calls. The Unit Supervisor stated that he passed by Complainant’s desk again and noticed she was still on the phone without answering the national calls. He asked Complainant if she needed any type of assistance, and she responded that she did not. The Unit Supervisor stated that he told Complainant to return to answering the national calls. He explained that he addressed the issue with Complainant during an interview and asked her about the time she was at her desk. He stated that Complainant responded that she was not sure what could have happened and if necessary, she could be charged with leave. The Unit Supervisor stated that he told her that such times are not for employees to choose and due to the fact that she was on her own personal calls during duty hours, she would be charged AWOL. The Unit Supervisor explained that he monitored the lunchtimes and breaks of all employees. The Unit Supervisor stated that he has approached other employees that were away from their desk for more than five minutes. Moreover, the Unit Supervisor stated that when employees were on a smoke break, they have returned before five minutes were over, and thus, an AWOL was not required since they clearly stated the reason for being away and the absence was within five minutes. Upon review, we find the Agency articulated legitimate, nondiscriminatory reasons for charging Complainant with AWOL on September 1, 2010. Complainant failed to show that the articulated reasons were a pretext for discrimination. Moreover, we note that Complainant failed to show that similarly situated comparatives were treated differently under similar circumstances. With regard to issue (2), we find Complainant alleged that on August 31, 2010, the Unit Supervisor spoke with her regarding her handling of a call which he believed she did not handle appropriately and then hollered at her to get back on the phone. Complainant claimed that the Section Manager, whose desk was located directly outside the conference room where 0120122072 5 the discussion took place, heard the Unit Supervisor yelling. In addition, as part of issue (2), Complainant claimed that on October 22, 2010, she was issued a “write-up” for the August 31, 2010 incident. The Unit Supervisor denied yelling at Complainant on August 31, 2010. He acknowledged speaking with Complainant in a conference room with the door closed regarding her handling of a call. He stated that Complainant became loud and irate and that he then told her that the interview was over since she was not professional. The Unit Supervisor stated that he then told Complainant to return to her workstation and to attend to the calls. He stated that Complainant left the room and the immediately returned, stating that she was not going to be treated that way. The Unit Supervisor stated that at that point he “respectfully but assertively” directed Complainant to return to her duties. The Unit Supervisor noted that on October 22, 2010, he gave Complainant a “write-up” regarding this incident, and he stated that Complainant threw the paperwork on his desk and told him that she was not going to sign the documents since he made up the incident. In her affidavit, the Section Manager stated that during the meeting with Complainant and the Unit Supervisor the door to the conference room was closed. The Station Manager stated that she heard Complainant yelling during the meeting. The Station Manger stated that when the door opened and they were coming out, she heard the Unit Supervisor tell Complainant to get back on the phone; however, she said that he did not yell or raise his voice. With regard to issue (3), Complainant stated that she was rated “3.0” or “Successful Contribution” overall, including a “3” in the rating element of Demonstrates Job Knowledge. Complainant noted that in her previous rating year, she received a “3” in that element, although with a “5” in Achieves Business Results, and had an overall rating of “3.5” for FY 2009. Complainant stated that the Unit Supervisor’s issuance of a “3” in Job Knowledge constituted harassment because it unfairly continued the “3” that her prior supervisor, who had only supervised Complainant for the last two months of FY 2009, had given her. In addition, Complainant stated that the Unit Supervisor gave Complainant a “3” in Achieves Business Results, which was a lower rating than her prior supervisor had given. The Section Manager stated that Complainant’s performance appraisal in the category of Job Knowledge was reduced from a “5” to a “3” due to her decline in accuracy. Regarding the category of Achieved Business Results, the Section Manager stated that Complainant was satisfactory in those levels. The Unit Supervisor stated that he rated Complainant a “3” in each of the categories because she was performing satisfactorily. A review of the appraisal reveals that Complainant received a “3” in all four individual elements and an overall rating of “Successful Contribution.” In the category of Interpersonal Skills, Complainant received a final rating of “3” and the Unit Supervisor noted that Complainant's acceptance of constructive feedback did not improve since her mid-year performance discussion in April 2010. In the category of Participation, Complainant received a final rating of “3” and the Unit Supervisor remarked that Complainant needed to make 0120122072 6 improvements in adhering to the availability policy while she was on duty. In the category of Demonstrates Job Knowledge, Complainant received a final rating of “3” and the Unit Supervisor remarked Complainant could improve by making better use of research of available resources and to use CHIP at all times to complete and comply with instructions and information according to each call. In the category of Achieves Business Results, Complainant received a final rating of “3” and the Unit Supervisor told Complainant that the majority of her work was completed while the callers were online and her overall contribution was on a successful rating level. In the present case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Upon review, we find Complainant failed to show by a preponderance of evidence that the Agency’s actions were a pretext for prohibited discrimination. Moreover, we find Complainant failed to prove by a preponderance of evidence that she was subjected to discriminatory harassment. We find Complainant has not established that the alleged harassing incidents, even if we assume they rose to the level of a hostile work environment, were motivated by any of her protected bases. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination 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 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. 0120122072 7 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 January 29, 2014 Copy with citationCopy as parenthetical citation