Brittany N.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

May 27, 2020

2019004936 (E.E.O.C. May. 27, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brittany N.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019004936 Hearing No. 480-2015-00667X Agency No. SF-15-0073-SSA DECISION On July 20, 2019, 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 July 11, 2019, final order 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a TeleService Representative, GS-8, at the Agency’s Regional TeleService Operations facility in Los Angeles, California. On January 25, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when: 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. 2019004936 2 1. Since September 24, 2014, and thereafter, Agency officials subjected Complainant to harassment, regarding, among other things, her performance, work conditions, and her use of restroom breaks; 2. On October 30, 2014, Complainant’s Supervisor (S1: male) downgraded her 2014 performance evaluation; 3. In November 2014, S1 charged Complainant with being Absent Without Leave (AWOL). 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 6, 2016, motion for a decision without a hearing and issued a decision without a hearing on June 25, 2019. Specifically, the AJ found that with regard to harassment, Complainant failed to establish that the actions alleged were based on her sex or prior EEO activity, or that they were sufficiently severe and/or pervasive to create a hostile work environment. The AJ further found that, with regard to Complainant being charged with AWOL and receiving a downgrade in her evaluation, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to establish that such reasons were pretextual. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 2019004936 3 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established her prima facie case of discrimination. We note, however, that with regard to reprisal, Complainant averred that S1 was not involved in her prior EEO activity. S1 averred that he was aware of her prior EEO activity but denied that he based his treatment of Complainant on such knowledge. We next find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to Complainant’s evaluation, S1 averred that “No, Complainant did not receive a downgrade in her 2014 performance evaluation. She received the same grade ‘3’ as she received from the previous two fiscal years.” With regard to Complainant being charged with being AWOL, S1 averred that the reason he placed her under the charge was because: On November 14, 2014, Complainant left for lunch at 12:23 pm and returned at 1:04 pm, (41 Minutes, which was 11 minutes over the regular 30-minute lunch 2019004936 4 break). On November 25, 2014 Complainant was on break from 9:27am to 9:53 am, (26 minutes, 11 minutes over the regular 15-minute break). She did not respond to my request for clerical time (explanation) for the extended break and lunch on these dates. (Parentheses in original) S1 averred that Complainant had previously been counseled over taking long breaks and lunches and he had advised her that she could be charged with being AWOL for not requesting leave in advance. S1 further averred that following such counseling, Complainant took an extra ten minutes for lunch prior to November 14 and he sent her the lunch-hour policy. In addition, S1 averred, Complainant had been AWOL on four prior occasions, and was again AWOL six months after the two November incidents. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. With regard to her 2014 evaluation, we note that the Agency submitted copies of Complainant’s evaluations for all three years confirming that she received the same evaluation of “3” for all three years. Complainant did not rebut S1’s articulated reason for his action but in her original affidavit, Complainant merely stated that “I expected to receive higher ratings in the job elements, which would average my overall rating higher than ‘3’. . . . I believe that my performance warrants higher ratings in the job elements.” Complainant, however, did not elaborate on why she believed she deserved a higher rating. S1 averred that during Complainant’s mid-term evaluation “Complainant stated she had to leave and did not want to review examples of Level 5 Performance for her position, GS-8 Teleservice Representative. Level 5 Performance examples are discussed to notify employees how they can achieve a higher job rating.” While Complainant may believe she was entitled to a higher rating, she has not shown, by a preponderance of the evidence, that S1’s articulated reason for his action was a pretext for discrimination or reprisal. With regard to the AWOL charges, Complainant again did not rebut S1’s articulated reason for his action. In her original affidavit, when asked what her response was to the charge and why did she feel she should not have been charged, Complainant did not deny that she was late but averred that “I believed that [S1] was going to charge me AWOL anyway, so I did not offer a reason for returning from lunch late.” We therefore again find that Complainant has not shown, by a preponderance of the evidence, that S1’s articulated reason for his action was a pretext for discrimination or reprisal. Nor has Complainant shown, by a preponderance of the evidence, that S1’s actions were motivated by discriminatory animus or retaliatory motive. 2019004936 5 Hostile Work Environment We note initially that, to the extent that complainant is alleging that she was subjected to a hostile work environment, when she was charged with being AWOL in November 2014 and received a lowered evaluation, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant may not include such allegation in her claim of hostile work environment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following actions occurred: since September 24, 2014, S1 and a Technical Assistant (TS: female) have been increasing the monitoring of Complainant’s incoming work calls and that if S1 determines that Complainant is giving out incorrect information to the public, Complainant is placed under extra monitoring more than her work colleagues; because of her frequent and longer restroom breaks, Complainant’s backup Supervisor (S2, female) asked if Complainant had a medical condition causing her frequent and longer restroom breaks; S1 asked inappropriate and detailed questions about what exactly Complainant was doing in the restroom; and since September 24, 2014, Complainant has been subjected to more service observations than her work colleagues. In finding whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). 2019004936 6 However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record, we find that the alleged actions were insufficiently severe and/or pervasive to alter the conditions of Complainant’s employment and hence do not constitute a hostile work environment under the law. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that the Agency’s articulated reasons for its actions were pretextual, or that she was subjected to a hostile work environment. We further find that Complainant has not shown the presence of a material issue of fact. We therefore AFFIRM the Agency’s final order. 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. 2019004936 7 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. 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 May 27, 2020 Date