Luann L.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 29, 2019

0120181445 (E.E.O.C. Aug. 29, 2019)

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

Luann L.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120181445

Agency No. NY-17-0546-SSA

DECISION

On March 26, 2018, 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
February 28, 2018 final decision 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. 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 Management and
Program Analyst, GS-0301-11, at the Agency’s Office of Disability Adjudication and Review
(ODAR) in Pennsauken, New Jersey.

On July 30, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her and subjected her to a hostile work environment on the bases of race (African-
American) and in reprisal for prior protected EEO activity when:

1. The Agency subjected Complainant to harassment beginning in or around
December 2016, and ongoing, with the latest incident on April 18, 2017; and

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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2. On April 18, 2017, Complainant received an email from her Group Supervisor
directing her to vacate the office that had been designated for her use while on a
developmental assignment in the Voyage Program.

Complainant asserted that the beginning of her harassment claim lies in an incident in December
2016, when she was due to receive a pin and award in recognition of 30 years of service to the
Federal government. According to Complainant, the awards were sent from the Regional Office
and formally presented to employees at a staff meeting. Complainant discovered in April 2017
that the pin and award had arrived in January 2017, but it was ripped to pieces. Complainant
alleged that management was trying to keep the matter quiet. After Complainant inquired about
the status of her award, management told her that the pin and award had arrived and asked her how
she would like it to be presented. Complainant believed the question was discriminatory because
the normal practice in the office was to present such awards at a staff meeting. Complainant
believed this incident occurred because of her race and that the South Jersey ODAR office has a
history of discriminating against black employees. Complainant also believed this incident was
retaliation for her several EEO complaints.

Complainant’s third-level supervisor, the Administrative Law Judge for South Jersey ODAR
(ALJ), testified that Complainant’s service award was delivered by mail. ALJ denied that the
award was ripped into pieces, but it was damaged, wrinkled, and creased. When the office received
a replacement award, ALJ admitted that Complainant was asked how she wanted the award to be
presented, and it was presented as Complainant wished.

The Group Supervisor (GS), Complainant’s first-level supervisor, said that the management team
discussed and concurred that the award could not be presented in the condition it was received.
Further, it was customary, at least for the previous 18 months, to ask employees how they wanted
the service award presented because some employees were not comfortable having the award
presented at a staff meeting. GS affirmed that the office had to order a new award for another
employee because that one was similarly damaged.

The Hearing Office Director (HOD) was Complainant’s second-line supervisor. HOD had the
damaged certificate in her possession and averred that it was crumpled and not suitable for
presentation. HOD stated she thought she had placed an order for the new certificate in February
2017, but upon review of her emails, determined she had not. She ultimately sent an order in April
2017. HOD said her delay in requesting a replacement was a mere oversight. HOD corroborated
GS’s statement that the office asked employees their preference as to how to receive the certificate.

In rebuttal, Complainant contended that the certificate was shredded, not simply crumpled and
creased. Complainant further questioned why management did not tell her that the pin and award
had arrived, even if it was damaged. Complainant also challenged management’s reasons for the
four-month delay in receiving a new certificate.

As to her second claim, Complainant began a developmental assignment in the Agency’s Voyage
Program, a 12-month career development program, in January 2017.
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Complainant claimed that her cubicle was in an isolated area, next to an empty office. When she
was detailed to the Voyage Program, Complainant sought permission to use the empty office for
her detail. According to Complainant, GS gave her permission in January 2017. However, on
March 30, 2017, GS asked Complainant to vacate the office because regional office personnel
required the office for a day. Complainant believed that GS’s instruction was temporary, and not
permanent. Complainant returned to the office afterward, and then on April 18, 2017, GS emailed
Complainant telling her to vacate the office permanently. Complainant claimed that GS’s
instructions were unnecessary because the office was vacant and there were numerous other offices
open for use. As such, Complainant believed GS’s orders were meant as harassment. Complainant
noted that a white employee at the GS-5 level has been allowed to use an office permanently.

ALJ said that GS approved Complainant’s use of the vacant office only to attend conference calls
and virtual training for the Voyage Program. ALJ affirmed that management learned that
Complainant had moved some personal items into the office and had even asked the Hearing Office
Systems Administrator to transfer her telephone line from her cubicle to the vacant office without
authorization. ALJ stated that GS asked Complainant several times to move back to her cubicle,
but she continued to use the office. GS subsequently contacted the supervisor of the Voyage
Program to determine whether Complainant required an office. The supervisor said that
Complainant did not need an office and could stay in her cubicle. As a result, GS sent Complainant
an email on April 18, 2017, reminding Complainant that she was not authorized to work from the
vacant office and that she needed to move back to her cubicle. ALJ noted that the GS-5 comparator
employee Complainant noted was a personal assistant to an Administrative Law Judge and was
required to sit as close as possible to the Administrative Law Judge as a reasonable
accommodation.

In rebuttal, Complainant maintained that she was authorized to use the vacant office by
management without restrictions.

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 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).

In its decision, the Agency concluded that Complainant failed to establish that she was subjected
to a discriminatory or retaliatory hostile work environment as the alleged conduct was
insufficiently severe or pervasive and there was no evidence that the incidents were based on
Complainant’s protected classes. For example, as for Claim (1), management explained that
Complainant did not immediately receive an award because it arrived damaged, and it took time
for a replacement award to arrive. Further, management explained that Complainant had the option
of receiving the award privately or publicly. Regarding Claim (2), management explained that
Complainant was not assigned to the office at issue and did not have permission to permanently
take the office, and when they believed Complainant was occupying the office permanently
without being assigned the office, management directed Complainant to vacate the office.
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The Agency concluded that Complainant failed to show that management’s reasons for its actions
were pretextual. As a result, the Agency found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that management was not forthcoming and provided
inconsistent statements which is indicative of bigger problems at the Agency. Complainant argues
that the record demonstrates she was subjected to harassment because her supervisors did not
request a replacement certificate until after Complainant notified managers that she had not
received one. As to Claim (2), Complainant argues that she was adversely affected when she was
denied use of the office because she no longer had privacy in which to complete the Voyage
Program. Complainant claims that this created obstacles for her which severely affected her
working conditions. Accordingly, Complainant requests that the Commission reverse the final
decision.

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. (Aug. 5, 2015) (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”).

Hostile Work Environment

Complainant has alleged harassment on the bases of race and reprisal. To establish a claim of
harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she
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 her statutorily protected class; and
(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 Agency. Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In short, to prove her harassment claim, Complainant must establish that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of a protected basis -- in this case, because of her race or her prior
protected EEO activity. Only if Complainant establishes both of those elements, hostility and
motive, will the question of Agency liability present itself.
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Here, Complainant alleged several incidents of what he believed to be discriminatory and
retaliatory harassment. The Commission finds that the totality of the conduct at issue was
insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the
alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is
no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any
of the Agency’s actions. More specifically, with regard to events related to the service award,
Complainant has not shown that management at South Jersey ODAR was responsible for damage
to her award or that the delay in obtaining a replacement was nothing more than an oversight.
Furthermore, management officials explained that they generally asked employees how they
wished to receive service awards because some employees preferred to have it presented without
an audience while others liked it presented during staff meetings. Management officials asked
Complainant how she wanted her award presented and once the replacement was received, it was
presented as she preferred.

With regard to her use of the vacant office, management explained that Complainant was granted
permission to use the office for training. When Complainant was no longer in training, there was
no need for her to use the private office. Complainant began using the office after training without
authorization. Both GS and ALJ affirmed that Complainant was allowed to use the office for
training purposes only and she was never assigned the office for her permanent use. The Voyage
Program Supervisor confirmed that Complainant did not need an office to perform her duties. As
a result, GS directed Complainant to vacate the office.

The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so
objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner
Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Complainant has not shown that he was subjected to
a discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant
claims that she was subjected to disparate treatment, the Commission finds that, as discussed
above, Complainant has not proffered any evidence from which a reasonable fact finder could
conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal.
As a result, the Commission finds that Complainant has not established that she was subjected to
discrimination, reprisal, or a hostile work environment as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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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. 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.
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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

August 29, 2019
Date