U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christina H.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019005551 Agency No. ATL-18-0963-SSA DECISION On August 29, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 16, 2019 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Customer Service Representation, GS-08, at the Agency’s Social Security Administration (SSA) Florence, Alabama Field Office. On November 30, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on national origin (Hispanic/Latino), disability2, and in reprisal for prior EEO activity (prior EEO complaint) when: 1. on August 22, 2018, management charged her as Absent Without Leave (AWOL); 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. 2 Complainant identified her disabilities as Post Traumatic Stress Disorder, anxiety, insomnia, depression, migraines, and sleep disorder. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2 2019005551 2. on August 23, 2018, she received an unfavorable performance evaluation; 3. on August 8, 2018, management did not provide her additional work as requested; and 4. on September 11, 2018, management blamed Complainant when she alleged a colleague was disrespectful. 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 July 16, 2019 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 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). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. 3 2019005551 During the relevant period Complainant was employed as a Customer Service Representative at the Agency’s Florence, Alabama Field Office. She provided bilingual services to the public and was the only Hispanic/Latina in the field office. Complainant has been in her position for approximately 3 years. The Operations Supervisor was Complainant’s first-level supervisor and the Assistant District Manager was her second-level supervisor. The District Manager was Complainant’s third-level supervisor. Regarding claim 1, Complainant asserted that on August 22, 2018, management charged her as AWOL. The Operations Supervisor (Caucasian), also Complainant’s first level supervisor, explained that he charged Complainant with 15 minutes of AWOL because “she had come in late on August 21, 2018 and did not call. All employees know they have to call unless there are extenuating circumstances.” He noted that Complainant did not say anything to him about her reasons for being late to work. Complainant asserted that she reported to work within 15 minutes and informed the supervisor the reason why she was late (in response to her medication (oversleeping)). However, the supervisor noted it was not clear how Complainant’s medication prevented her from calling in to let him know she was running late. He further stated if Complainant had approached him when she got in, he could “have weighed this information. In regard to the ‘punitive’ concern, AWOL in and of itself is not a disciplinary action. It is absence without management approve. She was not charged with any disciplinary action.” The Assistant District Manager (Acting DM) (Caucasian, unknown disability), also Complainant’s second-level supervisor, averred that this was not the first time Complainant “had not called in after being late. She had been verbally counseled on numerous occasions. She also had another AWOL a year prior (on August 17, 2017), as well as numerous verbal and written warnings. I did agree with [supervisor’s] decision considering all this for those reasons.” Regarding claim 2, Complainant alleged that on August 23, 2018, she received an unfavorable performance evaluation. The supervisor asserted that Complainant did not receive an unfavorable performance evaluation. Specifically, the supervisor stated that Complainant was rated “Successful” in every category. With respect to Complainant’s allegation that her performance feedback/rating was unfavorable and an example of disparate treatment/harassment, the supervisor stated “I disagree with these assertions. I actually think we were moving forward in the right direction and very optimistic about FY 19. I noted in her FY18 feedback, comments, and rating that I feel there is improvement happening.” Furthermore, the supervisor noted three employees received higher ratings while others, including Complainant, “who also received the successful rating. All performance feedback is given fairly and based strictly on individual performance.” 4 2019005551 The Acting DM stated that Complainant received a “Fully Successful 3” level rating and “there was nothing unfavorable about it.” She explained that “5” is considered outstanding and “it is achieved when an employee not only completes his or her work but also goes above and beyond meeting specific criteria as defined by the PACS program. The Acting DM stated that she believed the supervisor gave Complainant time and opportunity “to illustrate to him why she deserved a ‘5’ and she did not provide enough documentation to justify it. The Complainant is doing satisfactory job.”3 The District Manager (African-American), also Complainant’s third-level supervisor, stated “my observation is [supervisor] is meticulous and treats employees in a professional manner.” Regarding claim 3, Complainant asserted that on August 8, 2018, management did not provide her additional work as requested. The supervisor acknowledged that Complainant requested additional work but he did not grant her request at that time. He stated, however, since then, Complainant has taken on additional work. Specifically, the supervisor stated that as part of his job, he needs “to make sure those I supervisor are not overwhelmed and are able to complete their basic core duties prior to giving them additional ones. When Complainant began asking me for additional duties, she had been behind in several of her workloads (especially wage inputs).” He stated that he explained to Complainant that it was the reason why he could not ask her any other additional work load and “would reconsider her request at a later time. In addition, I would like to make it clear that this did not have any negative impact on her in any way.” The Acting DM stated that while she was not the decision-maker regarding the issue but the supervisor informed her that Complainant “had asked for additional work. As her first-line supervisor, he did not believe it was a good idea for her to take on new duties at that time. He told me she was behind on her core workload, and therefore he did not feel she could manage additional tasks. Furthermore, the Acting DM noted that she agreed with the supervisor’s decision. Regarding claim 4, Complainant claimed that on September 11, 2018, management blamed Complainant when she alleged a colleague was disrespectful. The Acting DM asserted that she did not “automatically” blamed Complainant for the September 11, 2018 incident. The Acting DM stated that she was in a meeting with someone when Complainant knocked on her door loudly. The Acting DM noted that Complainant told her that she was “ready to explode” so the other employee left. She was very, very upset, and was physically shaking and appeared angry.” She stated that she tried to calm Complainant down and she told her that there was an incident between her and a co-worker. The Acting DM stated that she then conducted an investigation of the incident between Complainant and Technical Expert according to Agency policy. 3 PACS is an abbreviation for Performance Assessment and Communication System. 5 2019005551 She stated that she interviewed Complainant, Technical Expert, and several witnesses. The Acting DM stated that she asked Complainant to write down what happened, but she never received Complainant’s written statement. She then met with the Technical Expert to find out her side of the story. The Acting DM stated that she also met with several witnesses and “it was determined no threat was made, and in fact [Technical Expert] reported that she apologized to Complainant for her statements. I encouraged both employees to treat each other with courtesy and respect. No further action was needed, and no disciplinary action occurred to either employee.” Furthermore, the Acting DM stated that she sent the fact-finding statement to the Crisis Advisory Team which she was required to as a management official. The District Manager acknowledged he was briefed of the September 11, 2018 incident and the fact-finding results. He stated that the matter turned into a “non-issue,” and that Complainant and Technical Expert had an unpleasant interaction and then apologie[s] were made…and in the end, it was resolved without any type of action taken. I truly do not understand how Complainant could argue this as an example of harassment, as it was worked out, and no one suffered punitive action.” With regard to all four claims, beyond her bare assertions, Complainant failed to produce any evidence that the proffered reasons provided by management witnesses for the disputed actions were a pretext masking discriminatory or retaliatory animus. We note again that Complainant provided no arguments on appeal. Finally, to the extent that Complainant also offered these four incidents in support of a discriminatory harassment claim, she again has simply provided no evidence to support her claim that her treatment was the result of her national origin, disability or retaliatory animus. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred.4 4 On appeal, Complainant does not challenge the January 11, 2019 partial dismissal issued by the agency regarding one other claim (that she was discriminated against on the bases of national origin, disability and in reprisal for prior EEO activity when since 2017, management denied her request to use flextime between 9:00 a.m.-12:00 p.m.). Therefore, we have not addressed this issue in our decision. 6 2019005551 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. 7 2019005551 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 27, 2020 Date
