Clora D.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 6, 2017

0120151966 (E.E.O.C. Nov. 6, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clora D.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120151966 Hearing No. 471-2014-00068X Agency No. CHI-13-0202-SSA DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated April 2, 2015, regarding her 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, we AFFIRM the Agency’s final order. BACKGROUND The record indicates that the Agency identified Complainant’s complaint, dated February 18, 2013, which was later amended, as whether Complainant, a Claims Representative (CR) at the Agency’s Sault Ste. Marie, Michigan field office, was discriminated against based on age (over 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. 0120151966 2 40), disability,2 sex (female), race (White), and in reprisal for pending EEO complaints when she was subjected to harassment when:3 (1) In September 2005, S1 gave her conflicting instructions. The next time she was helping a claimant, she stopped to answer a ringing telephone. S1 chastised her for leaving the claimant standing at the counter. (2) In September 2005, S1 reported her for sitting and doing nothing in the IVT (Interactive Video TeleTraining) room from 1:00-1:30 p.m., while she was on break. (3) In December 2005, and again a year later, S1 complained about her time and travel causing Agency officials to question her about her time and travel. (4) In November 2007, she reported that she needed to be off work due to surgery. S1 made various comments to her coworkers, including making comments to fellow coworkers that she was faking, did not have cancer, and was just having a “boob job” and tummy tuck.4 (5) On October 22, 2009, she had to ask the District Manager (DM) to review her 7B file since S1 did not respond to her request to review the file. (6) On October 23, 2009, S1 began to mandate shifts instead of following the prior OIC (Officer In Charge) assignment policy. (7) On December 9, 2009, a scheduled staff meeting was cancelled but only one person was notified. (8) On December 4 and 23, 2009, S1 sent out emails about OIC closing up the office. (9) From December 23, 2009, through January 25, 2010, her office was without an emergency cell phone since S1 took it with her while on leave. (10) Effective December 23, 2009, S1 began requiring her to compile a list of all the social security numbers (SSN) worked when she worked for credit hours. 2 Although Complainant originally alleged physical and mental disabilities in her complaint, she later dropped such claims with the exception of her status as a cancer survivor. 3 We note that although Complainant also alleged the basis of marital and parental status (single parent), it will not be discussed in this decision since it is not a basis covered by the laws enforced by EEOC. 4 We note that S1 became Complainant’s supervisor in October 2009. 0120151966 3 (11) On January 28, 2010, S1 established two shifts in the office applicable only to her and one other employee both of whom are both single, White, female cancer survivors, over 40 years of age. (12) On April 2, 2010, S1 told her that she could only use credit hours for Redeterminations (RZ), while other employees are allowed to continue to use credit hours for anything they want, including such things as putting up a Christmas tree and cleaning the mail room. (13) On April 26, 2010, she was instructed to first go to S1 if she needed Technical Expert (TE) assistance, while others were allowed to go directly to the TE. This delayed her receiving necessary information, thereby slowing her adjudication time and performance. (14) On May 11, 2010, during a staff meeting, S1 informed employees, contrary to established policies, that they can only work overtime in ½ hour increments. (15) On May 17, 2010, S1 demanded that internet hearings must be pulled in within 5 days; whereas S1’s appeals sometimes sit for as many as 17 days. (16) In August 2010, an assault complaint was not investigated causing her to be concerned about her safety, especially when she was in the office alone with S1. (17) In September 2010, she was charged on days with Absent Without Official Leave (AWOL); whereas employees who signed in and out about the same times as she in August through October 2010, were not similarly charged. (18) On February 17, 2011, S1 tried to show Complainant as incompetent in front of her fellow coworkers when she asked that another employee deal with a claimant due to a conflict of interest since she personally knew the claimant. (19) On February 25, 2011, S1 sent her an email about having unsigned applications, when she had not been responsible for the application in question. (20) On March 28, 2011, she sent S1 an email about S1 not addressing the failure to include 827's in disability packages since this slowed down processing time and made her look incompetent. (21) Since April 7, 2011, S1 took away certain duties from Complainant. (22) On April 8, 2011, she was not provided with a means for discussion with the DM about the problems she was having with S1. 0120151966 4 (23) On May 20, 2011, S1 asked her for the status on cases for which she had previously requested technical assistance that S1 failed to provide. (24) On June 8, 2011, S1 failed to provide start dates necessary for her to complete assignments. (25) On June 14, 2011, S1 refused to sign a form necessary for her to get reimbursed for an eye exam. She was required to have the form signed by S1 even though other employees got reimbursed without their supervisor’s signature on this form. (26) On August 13, 2011, S1 asked her to provide a 450 for a case by Close of Business (COB) the following day. Complainant had previously provided S1 this item. (27) On August 24, 2011, she received notice for a conference call she was unable to attend because S1 failed to block out the calendar so she could participate. Also, S1 did not provide her with notes from this conference call. (28) On September 14, 2011, S1 assigned her the 1:00 DID appointment while she was assigned to cover the reception desk for lunch. (29) On September 21, 2011, at about 3:00 p.m., S1 advised her that she had a conference call the following day when she was already scheduled to be off. (30) On October 3, 2011, S1 assigned her to the front desk when another employee was out. (31) On October 4, 2011, when other employees were allowed to represent SSA at a job fair, she was not offered this opportunity. (32) On October 5, 2011, S1 gave Canadian NH information inconsistent with that which she provided in order to make her appear incompetent. (33) On October 11, 2011, S1 told another employee that he could not work on a case for a person who had the same last name. S1 repeatedly gave her appointments for people with the same last name. (34) On October 21, 2011, S1 failed to provide her with necessary lead information. (35) On October 31, 2011, S1 failed to give her PACS (Performance Assessment and Communications System) review. (36) On November 3, 2011, as well as on other occasions, S1 cleared her appointments off the board while she was in the appointment. She also did this before she walked ten paces back to her cube. She also missed IVT training again on this date. 0120151966 5 (37) On November 8, 2011, S1 kept Rent Logs from her that she needed to complete her assignment. (38) On January 3, 2012, she and one other CR were the only CR's in the office to handle 10 scheduled appointments. The other CR was allowed to work credit hours without prior approval whereas she was always required to get prior approval before working credit hours. (39) On January 10, 2012, while she was making a note about instructions she received from S1, S1 rudely commented "FINE, make a note. For God's sake it's your job." (40) On January 11, 2012, S1 allowed another employee to take lunch at 1:30 p.m., but only allowed her to take lunch between 11:00 a.m. and 1:00 p.m. (41) On January 12, 2012, and on another occasion, S1 allowed another CR to be off the floor (thereby having no appointments and no phones) to watch the 9:00 IVT that she is required to watch at 8:00 a.m. (42) On November 9, 2012, S1 told a claimant that the woman assigned his case (Complainant) would call him but S1 failed to pass this information to her. (43) Since October 10, 2010, management makes rude remarks to her. (44) Since May 5, 2011, management gives preferential treatment to others and gives an unfair workload. (45) On March 25, 2013, she advised S1 about two persons who arrived to meet with S1. S1 kept these individuals waiting. When S1 finally met with them, S1 told them "I didn't know you were here." (46) On March 26, 2013, she was assigned more work than coworkers. Complainant did not dispute the Agency’s framing of the complaint. In the report of investigation, the Investigator noted in her July 23, 2013 memorandum that despite her numerous attempts to conduct an interview and to obtain an affidavit from Complainant, she was unsuccessful in those endeavors. The record indicates that Complainant submitted her rebuttal to S1 and managers’ affidavits. Upon completion of the investigation of the complaint, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On October 27, 2014, the Agency filed a Combined Motion for Partial Dismissal and Motion for Summary Judgment. Complainant failed to respond. On August 8, 2005, the AJ, granting the Agency’s motion, issued a decision without holding a hearing, finding no discrimination and dismissing a portion of the complaint. The Agency’s final order implemented the AJ’s decision. Complainant did not file an appeal brief. 0120151966 6 ANALYSIS AND FINDINGS 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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. Here, Complainant identified her disability as a cancer survivor. The record indicates that Complainant was hired by the Agency as a CR at the GS-7 level in the Sault Ste. Marie, Michigan field office in 2005. At the time of the instant complaint, Complainant held the same CR position at the GS-11 level. Procedural Dismissal Regarding claims (1) - (4), we find that the Agency properly dismissed such due to untimely EEO Counselor contact. The record indicates that the alleged incidents occurred in 2005, and 2007. Complainant however did not contact an EEO Counselor until December 14, 2012, which was beyond the 45-day time limit set by the regulations. We agree with the Agency that these incidents should be considered discrete acts rather than part of a continuing violation because they occurred so remotely in time from Complainant’s other claims which occurred after October 2009. Also, they occurred while S1 was a Service Representative (SR) and later a CR and was not yet Complainant’s supervisor. Complainant does not provide any justification to warrant an extension of the applicable time limit for contacting an EEO Counselor regarding these claims. Regarding claims (6), (8), (11), and (17), we find that the Agency properly dismissed these claims for raising the matters in a negotiated grievance procedure that permitted allegations of discrimination, pursuant to 29 C.F.R. § 1614.107(a)(4). During her deposition, Complainant admitted that she filed a grievance in March 2010, and again in October 2011, concerning the subject matters in claims (6), (8), (11), and (17). The record indicates that at the relevant time, Complainant was covered by the Collective Bargaining Agreement and pursuant to Article 24, Section 8, an employee is allowed to raise claims of discrimination under a statutory procedure or the negotiated procedure but not both. 0120151966 7 Disparate Treatment Turning to the remaining claims, assuming arguendo that Complainant established a prima facie case of discrimination for all bases, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for the alleged incidents. The record indicates that at the relevant time, Complainant was a CR, GS-11 in the Sault Ste. Marie, Michigan field office. S1 was hired by the Agency as a Service Representative in 2001, was promoted to a CR in April 2006, and served as Complainant’s supervisor from October 11, 2009, through October 7, 2012. At the relevant time, S1 supervised four employees: Complainant (who was a CR); another CR (female, over 40, White) who was the most experienced CR; a CR Trainee (CRT1) (male, White, age of 32 during a portion of the relevant period); and another CRT2 (female, White, married to a “tribal member”). Regarding claim (5), S1 indicated that since she had been a supervisor for one day, she was checking with the DM as to proper protocol concerning the subject matter. S1 stated that she, however, did not have a chance to finish her inquiry before the DM was asked by Complainant about the subject matter at issue. Once she was informed of proper protocol, stated S1, Complainant was allowed to view 7B file at issue. Regarding claims (7), (9), (10), (12) - (16), (18) - (20), (22) - (24), (26) - (38), and (40), Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances. The incidents at issue involved S1’s actions covered by the Agency’s general policy or practice that applied to all employees in the facility. Management acknowledged that some incidents at issue were unavoidable because their facility was small with only two highly experienced CRs, Complainant being one of the two CRs. We note that the coworkers identified by Complainant who were allegedly treated more favorably regarding the subject claims were CRTs (including CRT1) and not a CR. Therefore, we find that for many of these claims, Complainant was not similarly situated to her identified comparative employees. Additionally, we note that the complaint described in claim (16) was investigated by the Federal Protective Services. The guard, who allegedly assaulted S1 (not Complainant) in claim 16, was removed and was replaced by a new guard. We also note that the DM, described in claim (22), stated that he was located in a different town, Escanaba, and was responsible for five offices, including Complainant’s office, but he was always available by telephone or email to any employee he supervised. The DM indicated that Complainant had previously contacted him by email and telephone and on one occasion, she stopped in Escanaba to talk with him. Regarding claim (40), the person who Complainant states was allowed to take lunch at a different time was CRT2 who was not similarly situated. Furthermore, Complainant does not claim that she ever requested to switch lunch times. Regarding claim (21), S1 indicated that at the relevant time, S1 decided to take some work away from Complainant because Complainant indicated that she was behind on her work and did not have time to complete it. S1 stated that she did this as a way to free up time for Complainant so she would not be under undue distress. 0120151966 8 Regarding claim (25), management indicated that the Agency had a program for its employees wherein they were reimbursed for eye examinations if glasses were needed for work and their supervisor was to sign off prior to the examination and once the assistive eye wear was received. S1 stated that at the relevant time, she did not sign Complainant’s form because Complainant did not actually get glasses. Complainant admitted that she only had her eye examination but did not get glasses. Complainant admitted that she ultimately received the reimbursement for her eye examination at issue. Upon review, we find that Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances. Regarding claim (39), S1 denied she made the comments described by Complainant. Furthermore, these alleged comments, even if made, are not on their face harassing or discriminatory. Regarding claim (41), management indicated that most training at issue was offered at 8:00 am and again later two or three different times on that same day. Attendance was typically not mandatory. Complainant identified CRT1 as one who was treated more favorably by S1, of which S1 denied. But, we note that CRT1 was not a similarly situated employee. Regarding claim (42), S1 denied the incident. Regarding claim (43), management stated that they had no knowledge regarding the incident and Complainant had never brought such information to their attention. S1 stated that she had no knowledge of the incident. Regarding claim (44), S1, denying the incident, stated that the work was assigned alphabetically and the appointments were assigned depending on the staffing and needs of each day. Complainant’s coworker identified therein was CRT1, not a CR, at the relevant time. Thus, we find that Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances. Regarding claim (45), management indicated that a computer system was used to notify people when they had an appointment and the automated message did not pop up on S1’s computer screen at the relevant time. We find that S1’s remark was not directed to Complainant or about her. Regarding claim (46), Complainant’s new supervisor, as of October 8, 2012, indicated that the workload was assigned alphabetically and as equally as possible but things came up and the rotation might change. Upon review, we find that Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances. In this case, we do not address whether Complainant is a qualified individual with a disability. Furthermore, we note that Complainant has not claimed that she was denied a reasonable 0120151966 9 accommodation or that she was required to perform her duties beyond her medical restrictions, if any. Regarding Complainant’s claim of harassment, we find that Complainant failed to establish the severity of the conduct in question or that it was related to any protected basis of discrimination. It appears that Complainant disagreed with the way management conducted its business including the work load and work duties distribution. Complainant failed to show that she was treated less favorably than a similarly situated employee under similar circumstances or that the Agency’s reasons for its actions were a pretext for discrimination. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final order is AFFIRMED. 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. 0120151966 10 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 November 06, 2017__________________ Date