Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionAug 18, 2014
0120121357forweb (E.E.O.C. Aug. 18, 2014)

0120121357forweb

08-18-2014

Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.


Complainant,

v.

Carolyn W. Colvin,

Acting Commissioner,

Social Security Administration,

Agency.

Appeal No. 0120121357

Agency No. ATL-11-0228-SSA

DECISION

Complainant filed an appeal with this Commission concerning her complaint of unlawful employment discrimination. For the reasons set forth, we AFFIRM the Agency's decision, finding no discrimination.

BACKGROUND

The record reveals that, during the relevant time, Complainant was employed as a Claims Representative Specialist in the T2 Unit at the Agency's District Office in Knoxville, Tennessee. Complainant sought counseling and subsequently filed a formal complaint.

Complainant alleged that she was subjected to ongoing harassment on the basis of age when:

1. Management did not address Complainant's December 16, 2010 letter regarding Complainant's Opportunity to Perform Successfully (OPS).

2. Management promoted a hostile work environment against Complainant by directing Complainant's coworkers not to speak with Complainant.

3. A management official jumped from amongst a couple of cubicle to scare Complainant.

4. From July 14, 2010 through December 20, 2010, when Complainant was placed on a Performance Assistant Plan.

5. On January 3, 2011, when Complainant received a Proposal to Remove.

Complainant has not challenged the framing of the complaint on appeal and we shall not alter the framing. At the conclusion of the investigation, Complainant received a copy of the investigative report. The Agency informed Complainant of her right to request a hearing before an EEOC Administrative Judge (AJ), or alternatively, to receive a final decision from the Agency. More than thirty calendar days elapsed with Complainant failing to either request an EEOC hearing or a final decision from the Agency. Therefore, the Agency issued a final decision on the based on the record.

On December 20, 2011, the Agency issued a final decision, finding no discrimination. Thereafter, Complainant filed the instant appeal.

On appeal, Complainant argues that the Report of Investigation (ROI) omitted facts. Complainant asserts that there was a misrepresentation of facts by Responsible Management Officials. In response to Complainant's appeal, the Agency states that a preponderance of the evidence supports that the Agency's final decision that Complainant did not establish harassment on the basis of age. The Agency asserts that it completed a thorough investigation to the matter as evidenced by the ROI, and therefore, any request that the matter be remanded for further development should be denied.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. �1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management Directive 110, Chapter 9, � VI.A. November 9, 1999) (explaining that de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and ... issue its decision based on the Commission's own assessment of the record and its interpretation of the law").

Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).

To establish a claim of hostile work environment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.

Initially, the Commission finds that the Agency's investigation was adequate. We also find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, the Assistant District Director (ADD) states that, on December 16, 2010, he received the mail sent by Complainant, but he was not familiar with the identity and did not open it initially, thinking it might have been a virus. The ADD then recognized Complainant's name and opened it, and filed it in a file on his desk. During the meeting of December 20, 2010, the ADD discussed issues addressed in Complainant's letter, such as the OPS plan; 100 percent review and submission of all un-adjudicated work to a reviewer; and not to ask the Technical Experts questions. The ADD asked Complainant whether she had anything she wanted to mention to him, but Complainant never mentioned the letter. The ADD stated that everything in the letter was covered in the OPS. The ADD did not see anything in the letter that they had not discussed in the OPS.

As to claim 2, the ADD stated that Complainant was assigned a mentor, and that person was to give a report regarding Complainant's progress. The ADD claimed that a Technical Expert was assigned to review Complainant's work, one Technical Expert for each month, and the supervisor the last month. The ADD asserted that, when Complainant's work was being reviewed by the assigned mentor, the ADD received feedback from that mentor. The ADD articulated that he had to see what they were going to do with Complainant, and he needed input from Technical Experts. The ADD claimed that Complainant was basically asking everybody how to do her work; something she should have done herself with minimal assistance. The ADD claimed that he did not instruct the Technical Experts or anybody else not to speak with Complainant; he wanted an accurate write up to make a decision about her work. The ADD said that his conversation with the three Technical Experts was to have one Technical Expert assigned every month to work with Complainant. The ADD stated that he told Complainant that, if she disagreed with the Technical Expert, she should tell the Technical Expert since there would be only one person involved. The ADD asserted that, if the Technical Expert assigned to Complainant was not available, Complainant should then speak with the supervisor. The ADD articulated that he did not tell the Administrative Assistant or Complainant's coworkers not to speak with Complainant. The ADD claimed that Complainant's age was not a factor in the decision to place such a restriction on Complainant.

With respect to claim 3, the ADD denied that he jumped out from the cubicles and adds he did not intend to frighten Complainant.

Incidental to claim 4, the District Manager (DM) stated that Complainant was placed on a Performance Assistance Plan on June 20, 2010, by her previous supervisor because Complainant's performance in Achieves Business Results (timeliness) and Job Knowledge (quality of her work) had fallen to unacceptable levels. The OPS plan began on July 15, 2010. The DM said that the ADD and the previous supervisor recommended placing Complainant on this plan because her work had fallen behind; Complainant was not accurate; and Complainant was not successful after the Performance Assistance Plan. The DM asserted that Complainant was on a Performance Plan in 2007 and again in 2008 due to her work performance. The DM claimed that the 2008 Performance Plan was due to Complainant's untimely work completion. The ADD states that Complainant's former supervisor placed Complainant on the Performance Assistance Plan because Complainant was not doing well on her listings. The ADD said that Complainant was previously on a Performance Plan for similar reasons. The ADD asserted that Complainant was placed on the plan because Complainant did not achieve business results or demonstrate job knowledge.

Corresponding to claim 5, the DM stated that he did not agree with Complainant's statement that the Notice to Remove letter, dated January 3, 2011, was false, and that Complainant was set up for failure. The DM said that the specific reason cited on the letter was due to job performance. The DM asserted that management did not have restrictions on who Complainant could speak to, rather they restricted who she could ask questions about her work. The DM claimed that Complainant received additional time to complete her tasks. The DM stated that Complainant was given Friday and all the overtime and credit hours she requested. The DM claimed that Complainant's workload was not reduced because one of the reasons Complainant had been placed on OPS was because of Complainant's timeliness in completing work, and Complainant was not doing her fair share of the work. The DM articulated that Complainant was not set up to fail and Complainant's age was not a factor in the decision to issue the Proposal to Remove Notice.

The ADD said that he did not agree with Complainant's statement that the reason cited in the proposal to Remove Notice was false, and that Complainant was set up for failure. The ADD said that the proposal stated that, in 2007, Complainant was placed on a formal performance plan by a different district manager and supervisor; then in August 2008, Complainant was placed on a Performance Assistance Plan; and on November 24, 2008, to May 8, 2009, Complainant was placed on OPS due to her inability to achieve business results. Additionally, the ADD asserted that Complainant was given a temporary assignment from May 18, 2009, to October 16, 2009, which allowed Complainant to catch up on her work; but Complainant again fell behind, and on July 14, 2010, it was determined that Complainant needed to be placed on a Performance Assistance Plan. The ADD claimed that Complainant came off the plan and was placed on OPS, but failed.

After a careful review of the record and contentions on appeal, the Commission finds that Complainant failed to rebut the Agency's articulated legitimate, nondiscriminatory reasons for its actions. Additionally, the Commission finds that Complainant has failed to show by a preponderance of the evidence that she was subjected to discrimination on the basis of age. Moreover, Complainant has failed to show that the alleged harassing incidents, when considered together, constitute a discriminatory hostile work environment. Complainant has not shown that similarly situated individuals were treated differently regarding the issues in this complaint.

CONCLUSION

The Agency's decision finding no discrimination is AFFIRMED.

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

August 18, 2014

__________________

Date

2

0120121357

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120121357