Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionJan 29, 20140120113429 (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. 0120113429 Hearing No. 420-2010-00191X Agency No. ATL-10-0326-SSA DECISION Complainant filed an appeal concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Teleservice Representative (TSR) at the Agency’s Birmingham Teleservice Center (BTSC) located in Birmingham, Alabama. During the relevant time, Person A, a Contact Representative Supervisor at the BTSC was Complainant’s first-line supervisor from July 2009 to January 2010. Person B, a Section Manager at the BTSC, was Complainant’s second-line supervisor since January 2010. Person C, the Deputy Director of the BTSC, was Complainant’s third- line supervisor since May 2005. Person D, Unit Supervisor in the BTSC, was Complainant’s first-line supervisor beginning in February 2010. On March 19, 2010, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female), disability (angina, bursitis, chronic heart disease, disc disease, and high blood pressure), age (62), and in reprisal for prior protected EEO activity when: 0120113429 2 1. During a one-on-one meeting on January 27, 2010, Complainant’s immediate supervisor allegedly subjected her to acts of verbal and physical harassment; 2. Management placed Complainant on AWOL (Absence Without Official Leave) from January 4, 2010, to January 8, 2010, due to her failure to provide adequate medical documentation to substantiate her absence; and 3. Complainant was denied an award on April 23, and April 25, 2010. 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 timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing. The AJ issued a decision without a hearing on March 4, 2011. In her decision, with regard to issue (2), the AJ noted that Complainant was treated by a physician on December 30, 2009, and released to return to work on Friday, January 1, 2010, which was a federal holiday. Complainant was absent from work from Monday, January 4, 2010, through Friday, January 8, 2010. The national agreement between the Agency and the American Federation of Government Employees (AFGE national agreement) provided that when possible, employees requesting unanticipated sick leave should contact their immediate supervisor or a designated official during their shift. The AJ noted Complainant had previously exhausted all her sick leave and did not have sick leave to use for January 4, 2010, through January 8, 2010. The AJ noted that Complainant called Person A during her absence and requested to use advanced sick leave. Person A denied Complainant’s request. Complainant asked Person A whether she could request Leave Without Official Pay (LWOP) rather than AWOL; however, Person A placed Complainant on AWOL. The AJ noted that pursuant to the AFGE national agreement, an employee requesting to use advanced sick leave must provide medical documentation. Complainant did not provide medical documentation for her absence from January 4, 2010, through January 8, 2010. The AJ recognized that pursuant to the AFGE national agreement, if an employee’s supervisor is not able to clarify the employee’s leave status by the end of the shift, the absence may be charged to AWOL. Complainant was placed on AWOL status from January 4, 2010, through January 8, 2010. The AJ noted that a charge of AWOL did not preclude a later change in leave status for good and sufficient reasons. Complainant was given the opportunity to provide medical documentation to reverse the AWOL charge when she returned to work. The AJ found Complainant did not provide medical documentation for the period of absence and continued to be charged AWOL from January 4, 2010, through January 8, 2010. With regard to issue (3), the AJ noted that annual performance awards called Recognition of Contribution (ROC) awards were given to TSRs in the BTSC on April 23, 2010, for performance beginning October 2009. The AJ noted that annual performance awards called Exemplary Contribution of Service Awards (ECSA) were awarded to TSRs in the BTSC on 0120113429 3 May 25, 2010, for performance beginning October 2009. The AJ stated that all TSRs were considered for a ROC award and an ECSA, but not everyone was eligible. The AJ noted that to be eligible for a ROC award, the TSR must have had a rating of record with an element average of at least 4.0. The AJ noted that to be eligible to receive an ECSA award, the employee must have had a rating of record with an element average of 3.0. The AJ noted the Section Managers of BTSC determined the additional criteria for the ROC awards and ECSAs. The AJ noted the Unit Managers of BTSC determined who was eligible for an award based on the criteria set out by section managers. The AJ noted that the Section Managers of BTSC determined that to be eligible for a ROC award or an ECSA, a TSR must have, among other requirements: been in good standing; provided a high quality of service, including maintaining an overall service observation accuracy of 90%; interacted with others in a professional and positive manner; received constructive feedback in a positive manner; consistently adhered to the availability policy; utilized all appropriate resources; been dependable; and consistently followed procedures. The AJ noted Complainant received an element average of 3.5 on her performance appraisal in both 2008 and 2009. Person B determined which employees from Complainant’s section would receive awards. Person B determined Complainant was not eligible for a ROC award or an ESCA because she did not meet the criteria. Person B explained that Complainant was not considered eligible because there were several areas she did not meet based on observations and her file documentation since October 2009. Specifically, Person B noted Complainant’s negative use of interpersonal skills or the negative ways she tended to speak to coworkers and managers; that she was discourteous to an employee from another office; her inappropriate use of premium duty time; and she was not consistently adhering to the availability policy during duty time. In addition, Complainant did not receive at least a 4.0 overall rating for ROC eligibility. With regard to issue (1), the AJ stated that on January 27, 2010, Person A approached Complainant at her desk and asked to speak with her in a conference room. Complainant and Person A went into the conference room and Person A shut the door. Complainant asserted that Person A stood in front of the door and would not let her out, paced the floor, glared at her, and pushed her. The AJ noted that in addition to the AWOL and the failure to receive an award, Complainant also alleged that she was harassed about cleaning her work area; she was harassed about being on break when it was her break-time; she was harassed about her cell phone; she was harassed when Person A conducted a service observation where she claimed that Complainant failed to conduct the interview properly. The AJ determined Complainant did not show that the actions she alleged as harassment were based on her sex, age, disability, or prior protected activity. The AJ stated Complainant presented no evidence that any Agency actions were motivated by a discriminatory animus. 0120113429 4 The Agency subsequently issued a final order on May 12, 2011. The Agency’s final order fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant states that she was harassed and mistreated by Person A to the point she had to move to another unit. Complainant notes there were witnesses who stated during the investigation that they heard what she said to management behind the closed door when she asked the manager to keep her hands off her and to let her out of the room they were in. Complainant stated that Person C had made it a practice of holding up Complainant’s ratings to create chaos for her in a continued effort to impede Complainant’s career because of a grudge she has carried against Complainant for 25 years. Complainant alleges that Person C used Person A to take actions against Complainant. In response to Complainant’s appeal, the Agency requests that we dismiss Complainant’s appeal as untimely filed. The Agency states that it issued its final order on May 12, 2011. The Agency states it sent Complainant a copy of the final order via electronic mail and via regular mail on May 12, 2011. The Agency notes Complainant acknowledged receiving the Agency’s final order on May 17, 2011. The Agency claims Complainant’s appeal was not filed with the Agency until June 25, 2011. The Agency notes the Commission indicated it received Complainant’s appeal on June 27, 2011, which it states is consistent with a June 25, 2011 mailing date. In the alternative, the Agency requests we affirm the AJ’s final order which fully implemented the AJ’s decision. ANALYSIS AND FINDINGS At the outset, we address the Agency’s argument that Complainant’s appeal was untimely filed. Specifically, we note that in a June 14, 2011 letter, Complainant filed a statement requesting an extension of time to submit a statement or brief in opposition to the decision in her case. We treat this request as an appeal from the AJ’s decision finding no discrimination. In the present case, we decline to dismiss Complainant’s appeal as untimely filed. 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 EEOC Management Directive for 29 C.F.R. Part 1614 , Chap. 9, § VI.A. (Nov. 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 lawâ€). Upon review, we find the AJ’s issuance of a decision without a hearing was appropriate as there are no genuine issues of material fact in dispute nor are there are any credibility 0120113429 5 determinations at issue. We note that on appeal Complainant does not challenge the definition of the complaint as detailed in the AJ’s decision.1 In the present case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions with regard to issues (2) and (3). Upon review, we find Complainant failed to show by a preponderance of evidence that the Agency’s actions were a pretext for prohibited discrimination. For purposes of this decision, we assume that issue (1) occurred as alleged by Complainant. Upon review, 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 order is AFFRMED. 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. 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 1 We do not address in this decision whether Complainant is a qualified individual with a disability. 0120113429 6 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 Actionâ€). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations Date January 29, 2014 Copy with citationCopy as parenthetical citation