0120131162
05-05-2015
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120131162
Agency No. DEN-11-0858-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 20, 2012 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.
BACKGROUND
During the period at issue, Complainant worked as a Claims Representative at the Agency's Boulder Field Office, Title II Unit in Boulder, Colorado.
On November 21, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the bases of race (Asian American), sex (female), and in reprisal for prior protected activity when:
1. Complainant's manager did the following:
a. began coming into the break room and hovering over her, while staring and watching her eat;
b. became verbally abusive to her; and
c. began following her to her desk and standing behind her in silence;
2. on an unspecified date in April 2011, during a mid-year review, the manager got upset over a conversation Complainant had with another supervisor and verbally warned Complainant that he would take adverse action if the conversation continued;
3. on August 30, 2011, the manager:
a. sent a general email to employees regarding the need to absorb additional work on behalf of a co-worker who would be on leave for an extended period;
b. yelled at Complainant for not logging on to the computer system;
c. called Complainant into his office, slammed the door behind her, and yelled at her;
4. on August 31, 2011, the manager:
a. called Complainant into his office to discuss the incident from the day before and blocked the door when she attempted to leave his office; and
b. made warnings, threats, and charges of insubordination to Complainant during a meeting;
5. on November 7, 2011, during a meeting with the manager, Complainant received an end of year appraisal which was drastically lower than the years before;
6. on November 16, 2011, she received a letter of reprimand;
7. on January 26, 2012, the manager denied her request for a reassignment;
8. on January 23, 2012, while Complainant ate lunch with her husband in the break room, the manager stood around the corner and watched them;
9. on November 7, 2011, she received an appraisal which was drastically lower than her co-workers; and
10. on November 14, 2011, she received a letter of reprimand.1
After the investigation of the complaint, the Agency provided Complainant with a copy of the report of investigations and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on December 20, 2012, pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency dismissed claims 9 and 10 for stating the same claims that were previously accepted in the instant complaint, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency stated that Agency management contacted Complainant to determine whether claims 6 and 10 were distinct due to the different dates provided. Complainant confirmed that the incidents were exactly the same.
The Agency then proceeded to address claims 1 - 8 on the merits, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of race, sex and reprisal discrimination. The Agency nevertheless found that Agency management articulated legitimate and non-discriminatory reasons for its actions which Complainant failed to show was a pretext.
Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, sex and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
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, he 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. The
manager stated that in regard to claim 1, he denied Complainant's allegations. The manager stated that his daily routine includes going to the break noon at 12:00 p.m. and 1:00 p.m. The manager stated "at noon I will get a glass of water and drink it while standing with my back to the counter and looking out in the direction of the individuals in the break room. I do not sit down and, depending upon what is going on in the break room, I may or may not enter into or engage conversation. I do not hover over anyone or stare at anyone or single anyone out."
Further, the manager stated "I have never spoken to [Complainant] in a disrespectful, inappropriate, or verbally abusive manner by, for example, trying to exert my authority over or for any other purpose." The manager also stated "I have never snuck up on [Complainant] or stood behind her in silence. I have approached her at her desk on various occasions in connection with work related matters. I have also never snuck up on or stood behind any other employees."
A claim representative, also a union representative, stated that he has never witnessed the manager staring at Complainant in the break room. The union representative stated "on the occasions where I've eaten in the break room, there have been times when [manager] was there also getting water or something from the refrigerator and he would turn around to face co- workers who were seated in the break room eating. I never saw [manager] stand and stare at anyone in particular when he and I were in the break room at the same time."
The union representative also stated that he had attended several meetings with Complainant and the manager as Complainant's representative and "I have witnessed [manager] has spoken appropriately and professionally. [Complainant has told me, in effect, that [manager] has spoken to her such that he is trying to exert his power and authority over her, but
I have never heard [manager] do this."
The record contains affidavits from several of Complainant's co-workers detailing Complainant and manager's tense relationship. The co-workers stated, however, they did not see any indication that the manager subjected Complainant to harassment.
Regarding claim 2, the manager stated that during Complainant's April 2011 mid-year performance discussion, he did not tell her that she could not talk to another supervisor or he would subject her to adverse action if she did. The manager stated that Complainant asked him "why an argument she had with another employee was not documented in the other employee's mid-year review. I responded saying that what is documented in another employee's mid-year is confidential. [Complainant] responded stating that [supervisor] told her so, and I replied that [supervisor] is also prohibited from sharing employee performance discussions with other employees. When asked about this, [supervisor] stated she never told [Complainant] any information regard another employee's performance.
Regarding claim 3, the manager stated that he does not recall sending an email to anyone on August 30, 2011 and "it was likely, however, that I sent an email shortly prior to August 30, 2011 regarding the need to absorb an employee's work [because the employee] was out on extended leave. The manager stated that he had planned to send an instant message to Complainant and other employees about a claim assignment but noted that Complainant's status "was 'offline' meaning that she was not there. I verbally delivered my message to two of [Complainant's] coworkers and then I went to the sign in book and saw that [Complainant] was there making coffee and I asked her if I could talk to her for a quick minute. When we got to my office, I told her that I was going to send an instant message to the unit but that I could not send one to her because she was not logged on. I also said that I noticed that she had signed in at 8:33 and I was just wondering why she was not logged on yet. [Complainant] replied that she had to log off and log on again and she was talking to [employee] about [another employee's] workload. I asked her why she had to log off and log on again and she told me that her computer programs were running slowly. I said 'okay' and the conversation ended. I spoke to [Complainant] in a soft voice and conducted myself in a calm manner when I addressed this issue with her. I did not yell or raise my voice at her.
The manager stated that later that morning, a supervisor informed him that Complainant had returned her desk and "was very upset and crying about the discussion I had had with her about her not logging on." The manager stated that because he wanted to clear the air and find out why Complainant was upset, he sent her an instant message asking her to come to his office when she had a chance. The manager stated that Complainant then came into his office and "I shut the door, but did not slam it shut...I told [Complainant] that [supervisor] said that she was upset about my conversation with her earlier that morning and before I could finish my second sentence, [Complainant] responded sharply and loudly telling me that she had reacted defensively to [employee] that morning when [employee] asked her what she was doing for work sampling and how she ([Complainant]) felt like I was attacking her character."
The manager stated that he and Complainant continued their discussion and Complainant "repeatedly interrupted me and spoke in a loud and aggressive tone. I asked her to lower her tone and to speak with me with more respect but before I could finish she shouted that I needed to lower my tone. I had told her that I had not raised my voice and that I had been communicating very calmly with her. At that point, she said that she couldn't continue to talk with me until she calmed down and she then walked out of the office. Because I was sitting closer to the door and I have a small office, she had to slightly step around me but I was not blocking the door and I made no attempt to block her or stop her from leaving."
Regarding claim 4, the manager stated that the next day, August 31, 2011, he asked Complainant and a named employee if he could speak to them in his office. The manager stated that he wanted the employee "to attend so that I would have a witness. At that time [Complainant] told me that she would never talk to me alone because she felt I threatened her the day before and that she was seeking professional help." The manager stated that he then asked Complainant why she felt threatened and she responded that I had threatened her "by standing up and not letting her leave the office. I told her that was not true and asked her again to come to my office so we could talk. She then told me she wouldn't talk to me and I told her that [employee] would be present and that I had only a few quick things to say to her. She then said that she would not talk with me without representation and so I told her that we would also have our union steward, [union steward] present."
The manager stated that he asked the union steward to join him, Complainant and a named employee in his office. The manager stated that he then started the meeting "by saying that I just wanted to talk with [Complainant] to clear the air from yesterday, that yesterday was a bad day and I asked her if there was something going on I might be able to help with. [Complainant] replied by stating that she couldn't work with me because of my constant mood swings." The manager stated that he told Complainant that he wanted to communicate with her effectively and "wanted to make our discussion productive and I asked what I could do to accomplish this. She replied that she didn't want to talk to me and that she was formally requesting that all of our communications take place via e-mail. I told her that that was not reasonable and there must be verbal communication between us. I also asked her if there was something in the way I asked her about her work that she didn't like and what I could do to change it and she replied 'email only.' I went on to say that I expected everyone in the office to communicate professionally, respectfully, and with dignity, including the two of us."
The union representative stated that during the August 31, 2011 meeting, Complainant told the manager that she felt threatened and "that he had shut the door and stood up against the table in front of his desk with his arms crossed making her feel trapped. [Manager] then said, in essence, that he did not intent to threaten her and if she felt that way he apologized. During this meeting neither [manager nor Complainant] was speaking inappropriately to the other one. [Complainant] was very emotional with tears in her eyes and she had trouble finding words to express herself and she appeared to be shaken. [Manager] appeared to be trying to diffuse conversation that that could escalate the situation and address [Complainant's] concerns in a professional manner. It also appeared to me that [manager] did not want to escalate [Complainant's] emotional stress after seeing how shaken she appeared."
Regarding claim 5, the manager stated that on November 7, 2011, he met with Complainant to discuss her end of the year rating. The manager stated that Complainant had four performance elements and he gave her a rating of 3 for each element, for an overall rating of 3, "because of my perception and observation of her performance." Specifically, the manager stated "we have a three-tier rating system: 1, 3, and 5. A 1 means that an employee is failing and that his or her performance is unsuccessful, a rating of 3 means the employee's performance is fully successful, and a rating of 5 means that the employee's performance is outstanding."
Further, the manager stated that in addition to a mid-year review and final rating discussion, he gave Complainant verbal feedback regarding her performance throughout the rating period "as I did with all of the employees I supervise. [Complainant] expressed her disagreement with her end of year rating and she refused to sign her rating document at that time. She also said that she would reply in writing, but I do not recall ever getting anything back from her."
Regarding claim 6, the manager stated that he issued Complainant a letter of reprimand as a result of her conduct during the November 9, 2011 unit meeting. For instance, the manager stated that during the meeting, Complainant "was rude, disrespectful, disruptive, and unprofessional. She interrupted me while I was talking on several occasions and called me out in front of the other employees and put me on the spot. As an example, when I was talking about our workloads she interrupted me in mid-sentence and said that I didn't listen to a word that another employee, [employee], had said. I replied to her, 'I'm sorry, what part did I miss?' [Complainant] sharply replied, 'what did she say then?' As I started to respond to her, she interrupted me again in mid-sentence and said, 'See, you weren't even listening.' I then basically went on with the meeting because I did not believe that any further discussion with [Complainant] would be productive."
The manager stated that following the meeting, he had a discussion with Complainant. Specifically, the manager stated he told Complainant that she was unprofessional and disruptive during the November 9, 2011 meeting and that he expected her "to conduct herself professionally and respectfully during the next meeting. She replied, 'you said you wanted feedback and I was just giving you feedback.' I told her that I did want feedback, but the manner in which she provided feedback needed to be more productive." The manager stated that because he was concerned about Complainant's behavior, he contacted Labor and Employee Relations and "they advised me that her actions were egregious enough to warrant a letter of reprimand." Furthermore, the manager stated that Complainant's race, sex and current EEO activity were not factors in his decision to issue her a letter of reprimand.
Regarding claim 7, the manager stated that Complainant never asked him for a reassignment. The manager stated "I believe that [Complainant] made this request during a mediation session regarding her current EEO complaint, but she did not want me at the session and so I have no firsthand knowledge that this occurred."
Regarding claim 8, the manager stated that on January 23, 2012, he walked into the break room as part of his afternoon routine "to drink a glass of milk and heat water for a cup of tea. [Complainant] and her husband were eating lunch. I drank my glass of milk, was heating the water for my tea, and before the water was hot [Complainant] asked her husband if he wanted to go outside to eat and then they got up and walked past me and [Complainant's] husband said hello to me and I said hello to him. I did not hover over or stare at [Complainant] and her husband and, to the best of my recollection, we were together in the break room for only three minutes or so."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her race, sex or prior protected activity.
Moreover, we find that the Agency's disposition of claims 9 and 10 on procedural grounds as discussed above, was appropriate.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 5, 2015
__________________
Date
1 The record reflects that race as a basis and claims 7- 10 were later amended to the instant formal complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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