Ronnie R.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

2019001585 (E.E.O.C. Sep. 30, 2019)

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

Ronnie R.,1
Complainant,

v.

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

Appeal No. 2019001585

Agency No. DAL-18-0554-SSA

DECISION

On February 7, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s December 31, 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as an Operations Supervisor at the Agency’s
Hammond, Louisiana Field Office.

On February 15, 2018, Complainant filed the instant formal complaint. Complainant claimed
that the Agency discriminated against him based on race (Caucasian), sex (male), and age (over
40) when:

1. on November 4, 2018, management denied his request to be reassigned to a Technical
Expert position; and
2. since November 2016 and ongoing, he was subjected to harassment and a hostile
work environment regarding performance appraisals and improvement plans, critical
and inappropriate comments from management, and reassignment.

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.

In its December 31, 2018 final decision, the Agency found no discrimination based on the
evidence developed during the investigation.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

Disparate Treatment (claim 1)

A claim of disparate treatment 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).

Complainant was one of the two Operations Supervisors at the Agency’s Hammond, Louisiana
Field Office. In June 2016, Complainant moved from the Kenner Field Office to the Hammond
Field Office, where he has worked for the Assistant District Manager and District Manager.

Regarding claim 1, Complainant asserted on November 4, 2018, management denied his request
to be reassigned to a Technical Expert position.
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The Assistant District Manager (African-American male, over 40) stated that during the relevant
period, he was Complainant’s supervisor. He stated that Complainant informed him that he was
willing to be downgraded to accept a Claims Specialist position “because of his concerns about
what was happening relating to him in the office. We talked about the pros and cons.”

The supervisor stated that Complainant had a meeting with the Area Director and “he later
changed it around and said he wanted to have a Technical Expert position…I understand he
spoke with [District Manager], but she was not positive about making him a Technical Expert,
based on his current level of performance. When I spoke to him, I talked in terms of us having a
position available, and also that he needed more training. We already had too many Technical
Experts for the size of our office. That would need to come through a Merit Promotion
situation.”

The Area Director (African-American female, over 40) explained that she had a telephone
discussion with Complainant about his request “because I was concerned about why he made the
request…he and I only talked about a request to become a Technical Expert. I gave him my
reasoning why he could not be given that position. I did also talk to him about the fact he would
need to continue to work with his management team. I did also speak with his managers about
this same point, that they all needed to be able to work together.”

Further, the Area Director noted that Complainant did not make a request on a hardship basis and
“his case would not fall in the hardship area. He is aware that we have a process to follow for
hardship requests. He would be well aware of this because of a prior hardship request he
submitted.” The Area Director also noted that the Hammond Field Office already had a certain
number of Technical Expert (“TE”) positions and “there was no need for another TE in that
office…we have not moved anyone into Technical Expert position from other position during
my tenure as Area Director.”

Agency management articulated a legitimate, nondiscriminatory reason for its actions. Beyond
his bare assertions, Complainant produced inadequate evidence to establish that this explanation
was pretext designed to mask the true, discriminatory motives.

Harassment/Hostile Work Environment (claim 2)

To prove his harassment claim, Complainant must establish that he 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 his protected bases – in this case, his race, sex and age. Only if
Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself. Here, as discussed below, Complainant simply has provided
inadequate evidence to support his claim that his treatment was the result of his race, sex and
age.

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Regarding claim 2, Complainant asserted since November 2016 and ongoing, he was subjected
to harassment and a hostile work environment regarding performance appraisals and
improvement plans, critical and inappropriate comments from management, and reassignment.

The supervisor explained that he was not technically the Rating Official for Complainant’s FY
2016 appraisal, but that he was the Rating Official for his FY 2017 appraisal. The supervisor
stated that he contacted Complainant’s former supervisor at the Kenner Field Office and asked
her to do his appraisal “since he had just arrived in Hammond, and I felt I did not have enough
information to do the rating myself. She sent me the appraisal and I put it into the system for
[Complainant]. When I gave it to [Complainant], I said the rating is from [former supervisor].”

With respect to Complainant’s allegation that there was a drop-off in the rating he received from
the former supervisor, the supervisor stated that the former supervisor gave him that rating and
he had no involvement with it because he was Complainant’s new supervisor.

The supervisor further stated that in regard to the FY 2017 appraisal, he felt that there were
“more deficits in what I wanted to see in [Complainant’s] performance. There is a lot happening
in our office, and we talked about why I gave him the ratings I did. There were communication
problems, and there were problems with him completing his tasks. There was a lack of unit
meetings to talk to the staff. In addition, he was not doing well in monitoring the VIPR system,
which tracks people coming into the office. He was not monitoring the CSRs closely enough to
ensure they were interviewing efficiently…there was also a problem with him not stopping to
provide guidance to the staff when they sought it. He would stay at his keyboard instead of
turning around to talk to them.”

The supervisor stated that Complainant “has been more respectful and quiet in our dealings
recently, though, but that was a change from the past. However, there was a time during a recent
training session he was presenting when we had technical difficulties, and he started hitting
things and acting angry in front of the staff. He did things like moving things around, slamming
the remote down, and doing what I call ‘huffing and puffing’ about the problems, although I was
indicating I was not alarmed about this, and the information could be covered later if the link is
not operable.”

Regarding harassment allegations, the supervisor stated that he does not understand “why
[Complainant] is saying harassment, asking questions is considered [Complainant] was not
performing efficiently and effectively, and that was why he received the Optional Discussion.
He was not meeting the requirements of his performance standards after our earlier discussion
about the same issues, when he received his performance appraisal in October 2017.”

The supervisor further stated that Complainant’s managers were dealing with work issues and
asking him appropriate questions. He determined that it was not harassment “when
[management] are talking about cases and addressing work-related problems.”

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Complainant further asserted that other employees were treated more favorably than he was
when he was subjected what he felt were critical and inappropriate comments. The supervisor
noted that there was only one time when the District Manager said there was a problem.
Specifically, the supervisor stated that the District Manager had a good reason thinking that
Complainant “might not be honest in what he said, and I have found that [District Manager] is
very direct in her dealings with people. When she said this, [Complainant] had nothing to say in
response….however, I too had some concerns about [Complainant’s] level of honesty in talking
about work-related matters, to the point that I started checking behind him to find out was really
going on, after we spoke about a problem area.”

The District Manager (African-American female, over 40) was the reviewing official concerning
Complainant’s FY 2017 appraisal. The District Manager stated that she occasionally questions
statements in employee’s narrative and ask the appraising official to include examples “to
support the statement.” The District Manager acknowledged suggesting that the supervisor
“delete some of the information he put into [Complainant’s] 2017 appraisal, because there was
so much content in the narrative. I think [supervisor] might have done that because
[Complainant] so often gave pushback when he received any criticism. He would go back to
what had been happening in Kenner, and ask what was different in Hammond.”

The District Manager stated that during the relevant period, Complainant was given an Optional
Discussion based on observations of his performance. For instance, the District Manager stated
“the way I see it, [Complainant] has difficulty receiving negative feedback and although
[supervisor] had ongoing conversations with him regarding his workload assignments, it did not
become real until he saw it in writing. I have never observed anything happening that I felt
represented harassment of [Complainant] by [supervisor]. In my observations, [supervisor] has
extended himself by routinely assisting and offering guidance for [Complainant]. [Supervisor]
gets along well with everyone in the office.”

Moreover, as detailed above, regarding the subject claims, responsible Agency officials
articulated legitimate, nondiscriminatory reasons for the disputed actions. Complainant failed to
prove, by a preponderance of the evidence, that his race, sex and/or age played any role in the
disputed actions. His claim of discriminatory harassment is precluded based on our findings that
Complainant failed to establish that any of the actions taken by the agency were motivated by his
protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21,
2000).

CONCLUSION

We AFFIRM the Agency’s final decision finding no discrimination because the preponderance
of the evidence of record does not establish that discrimination occurred.

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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

September 30, 2019
Date