Darlene P.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 16, 2017

0120151461 (E.E.O.C. Nov. 16, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darlene P.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120151461 Agency No. SF-14-0223-SSA DECISION On March 14, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 13, 2015, final decision 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. For the following reasons, the Equal Employment Opportunity Commission (EEOC or Commission) AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Claims Representative (CR), GS-0105-11, in the Flagstaff District Office of the Social Security Administration, in Flagstaff, Arizona. On February 24, 2014, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment based on retaliation (prior EEO activity) when: (1)(a) since November 4, 2011, her supervisor (S1) has exhibited a lack of communication, misinformation, and non-responsiveness; 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. 0120151461 2 (b) on December 2, 2013, she sent an email to S1 requesting the status on a case from September 4, 2013. Complainant reportedly contacted S1 five times regarding the request and finally on the sixth request, Complainant’s District Manager (S2) responded; (c) on January 13, 2014, she sent an email to S2 in response to his request to assist the Service Representative (SR) in processing a case. But, due to the lack of communication from S1, there were conflicting stories between co-workers on how to handle the case; (d) in December 2013 or January 2014, Complainant was not given notice of overtime; (e) on March 30, 2012, she received an official reprimand from S1 and was put through a Weingarten discussion for efficiency of service. S1 informed her that the reprimand would be placed in Complainant’s 7B file and remain there for one year. However, when Complainant reviewed her file there was no reprimand contained in the file and Complainant never received it when the file was purged; (f) on January 14, 2014, she learned other employees were allowed overtime; however, Complainant was told earlier that there was no overtime; (g) on April 2012, Complainant received a poor mid-term evaluation; (h) on July 17, 2012, she was placed on a Performance Assistance Plan (PAP); (i) in February 2013, she was not given feedback regarding a reconsideration case; (j) from April through June 2012 and October 2012 through March 2, 2013, she was not given a response regarding her request for Family and Medical Leave Act (FMLA) leave; (k) in January and February 2013, management did not discuss her promotion opportunity; (l) on November 6, 2012, she learned her leave balance was adjusted; and (m) since October 2, 2012, management has not taken action regarding her claim of bullying. The Agency dismissed the following claim in accordance with 29 C.F.R. § 1614.107(a)(4): (2) on December 18, 2013, she was issued a low evaluation/appraisal Performance Assessment and Communication System (PACS). The record shows that Complainant is a member of the bargaining unit covered by the National Agreement between the Agency and the American Federation of Government Employees. Article 18, Section 6 and Article 24, Section 8 of the National Agreement provides for adjudication of allegations of discrimination. The record further shows that Complainant filed a grievance regarding Claim 2, under the negotiated grievance procedures on December 18, 2013 (prior to Complainant’s EEO contact in this 0120151461 3 matter). Accordingly, we affirm the Agency’s dismissal of Claim 2 as a matter raised in a negotiated grievance procedure. After 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 EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. FACTUAL BACKGROUND With respect to Claim A, Complainant states she did not have communication issues with management prior to filing an EEO complaint in 2011, but she began experiencing such issues immediately after filing her complaint. She indicates that S1 was always helpful and responsive previously, but this changed after the complaint was filed. She also asserts that S2 always tells her he will follow up on her complaints, but then never gets back to her. In addition, Complainant contends that S1 and the other managers fail to communicate with her, provide misinformation, and are not responsive. Complainant states that in April 2014, S1 provided information concerning level five ratings, but failed to respond to her questions. She also states that on February 13, 2013, she arrived to work and found that nobody had informed her that the office was closed because of snow. Complainant indicates office policy requires S1 to telephone employees in the event of office closure. She further states she asked S1 for the time and telephone number she called to inform her of the late opening of the office, but S1 ignored the e-mail and later told her that she had texted her at 6:00 a.m. Management officials all deny Complainant’s assertions and provide specific instances of appropriate communications and responsiveness. As to Claim B, Complainant states she processed an overpayment claim on September 4, 2013, but it would not clear from the system. She states the claim kept coming back, so she sent an e- mail to S1 on September 13, 2013, advising that assistance was needed to clear the claim. Complainant also states that on September 26, 2013, S1 provided a website link and other information to use in clearing the claim, which Complainant used, but was unsuccessful in clearing the claim. She indicates she then e-mailed S1 stating that she would need assistance from Phoenix, which S1 stated she would obtain. Complainant further states she asked S1 for the status of her request more than once, but never got a response. She indicates that in February 2014, S1 told her another CR had cleared the claim from the system. Complainant asserts that she asked why another CR cleared the claim rather than her, and was told that the CR would show her how it was done, but that this has not happened. S1 asserts that this allegation involved an overpayment to a beneficiary that kept returning to Complainant’s case processing queue starting in July 2013. She indicates she and Complainant discussed how to clear the claim on September 4, 2013, but Complainant was unable to clear it 0120151461 4 and asked what to do. S1 explains that she sent an e-mail to Complainant on September 26, 2013, asking for information on the steps Complainant had taken to clear the claim, so she could provide it to her point-of-contact in Phoenix. S1 also contends that Complainant did not provide the information. S1 further states the claim resurfaced on Complainant’s computer on December 2, 2013, and Complainant sent an e-mail stating that this was her fifth request about the status of the claim. S1 states that she told Complainant she was supposed to provide information on September 26, 2013, concerning her attempts to clear the claim, but had not done so. S1 further states that it is her understanding that Complainant raised the issue with S2 while S1 was out of the office on December 24, 2013, and that S2 asked another CR to clear the overpayment claim from the system, which resolved the issue. S2 corroborates S1’s assertions. With respect to Claim C, Complainant states that a SR transferred several claims to her for assistance, but failed to put any notes on the documents indicating what assistance was needed. She also indicates that S1 said she would speak with the employee, but S1 did not get back with her and the SR continued to transfer claims. Complainant further states she raised this issue with S2 as well, but neither of them ever got back to her, which ended up causing considerable tension between her and the SR. S1 asserts that she was on leave when this issue arose on February 20, 2014, and learned from S2 that a SR had asked Complainant for assistance in handling a claim involving change of living arrangements. She indicates SRs cannot access the computer system to process this type of claim and need assistance from a CR. S1 relates that S2 told her Complainant took the position that an SR should process changes in living arrangements and refused to provide any assistance. S1 also states she spoke with the SR, who told her that another CR provided the assistance after Complainant refused to do so. S2 corroborates this testimony. With respect to Claims D and F, Complainant asserts that on December 30, 2013, she received a memorandum in her mailbox from S1 indicating that overtime would be available on December 31, 2013 and January 2, 2014. Complainant indicates that such notices are usually sent via e- mail, and she would not have known about the overtime if she had not checked her mailbox. Complainant also states she worked overtime on January 2, 2014. She indicates S1 told her there would be no overtime after January 12, 2014, but on January 13, 2014, she noticed that some employees indicated overtime on the sign-in sheet. Complainant asserts that her co-worker told her that S1 had communicated in the morning that overtime was authorized. She states she sent an e-mail asking about this, but did not receive a reply until January 14, 2014, at which point S1 confirmed that overtime was available. Complainant further states that because of this, she did not start work early enough to be able to work overtime. She also indicates that on July 6, 2013, S1 informed others of overtime, but failed to inform her. S1 asserts that she informs employees of authorized overtime by e-mail, verbal communication, or memorandum placed in an employee’s mailbox. She also asserts that she put overtime memoranda in each employee’s mailbox in December 2013, but noticed that some employees were not retrieving their mail, even though they are supposed to do so daily. S1 further states that Complainant never said anything about not being given notice of overtime in December 0120151461 5 2013, and Complainant did work overtime in December 2013. She indicates that overtime authorized in December 2013 had to be used by the close of business on or about January 15, 2014, absent authorization for additional overtime. According to S1, Complainant asked about this on January 13, 2014, and she told her that it was available through January 15, 2014. As to Claim E, Complainant states she received an official reprimand in March 2012, and was told the document would be placed in her 7B file and purged after one year. She indicates employees are supposed to be notified when documents are purged from their 7B file and given the actual document that was purged. Complainant states she reviewed her 7B file in May 2013, but did not find a copy of the reprimand and was never provided a copy if it was purged from her file. Complainant further states that S2 told her he had purged the file but did not have any knowledge of the whereabouts of the official reprimand. S1 affirms that Complainant did not mention anything about not receiving the official reprimand that was purged from her file, and she does not have any knowledge why Complainant was not given the purged document. Complainant’s former second-line supervisor (FS) states the 2012 reprimand was placed in Complainant’s 7B file, but she does not have any knowledge as to why Complainant was not provided the purged copy. S2 states Complainant never raised this issue with him. With respect to Claims G and H, Complainant states she was given a negative mid-year review that rated her less than satisfactory in the elements of Participation, Business Results, and Knowledge, and stated she was going to be placed on a PAP. She also indicates she disagreed with the review and submitted a rebuttal to management. Complainant states she satisfactorily completed the PAP in September 2012, and her 2012 year-end evaluation contained satisfactory ratings. Complainant also states that she never had any performance issues prior to filing her EEO complaint. S1 asserts that the purpose of the mid-year review is to give employees a snapshot of areas where improvement is needed. S1 also indicates she identified areas where improvement was needed and examples of why improvement was needed. S1 further states that Complainant’s performance did not improve sufficiently after the mid-year review and a decision was made by FS to place Complainant on a PAP. She indicates she recommended the action to provide an opportunity for Complainant to improve in less than satisfactory areas. S1 also relates that Complainant was upset, but she satisfactorily completed the plan and received satisfactory ratings in her end year review. FS corroborates S1’s testimony with respect to this claim. With respect to Claim I, Complainant states she was responsible for processing a request for reconsideration claim on January 29, 2013, and asked a SR for information. She contends the SR refused to respond to her request for information and it turned into a dispute between them. Complainant relates that she informed S1, who told her that a different SR was processing reconsideration charges. Complainant also states she asked why she was not told of the change, but S1 would not respond. Complainant claims that leaving her out of the line of communication causes tension with employees. S1 does not have any recollection of this alleged incident. 0120151461 6 As to Claim J, Complainant states she submitted a request for FMLA leave to FS on or about April 2012, as she was out on sick leave and needed advanced sick leave under FMLA. Complainant further states that FS would not approve advanced sick leave unless it was approved under FMLA, so she had to use about two weeks of annual leave to cover her illness. Complainant further indicates she provided the application for FMLA with supporting documentation to FS, but never received a response. She states she sent S1 an e-mail about this on June 22, 2012, but does not recall receiving a response. Complainant also indicates she asked S1 for a status update in October 2012, but S1 did not know what FS had done with the request and asked her to get more information from her health care provider. Complainant states she told S1 she had already provided everything. Complainant indicates she was never given any documentation from management approving or denying her FMLA request. S1 states that around April 2012, Complainant submitted completed FMLA forms and a slip from a health care provider, which she then provided to FS. She indicates that FS stated she would have to coordinate with Human Resources, as it was unclear whether Complainant’s illness was a serious illness under the FMLA. S1 also states that Complainant asked about the status of her request in the middle of 2012, but she was unable to find a response to the request because FS had retired in May 2012. She states she followed-up and informed Complainant that the information from her health care provider was insufficient to support approval of advanced sick leave or the use of leave under FMLA. FS states it was unclear whether Complainant’s medical condition qualified for any leave under FMLA, as her doctor slips were vague. She states she sent the request and documentation to the Human Resources Medical Office to get an opinion about whether Complainant’s condition qualified for FMLA. FS also states she followed up two weeks after she sent the request, but was told that the submission had not been assigned to a doctor for review because the department was overwhelmed. She indicates she did not receive a response before going on leave on May 31, 2012, and retiring on August 3, 2012. As to Claim K, Complainant states she should have been promoted to GS-11 immediately upon completion of her satisfactory year-end PACS for FY 2012. She indicates that when she asked when she was going to be promoted, S1 said she was going to observe her performance for a period of time to ensure she was on the right track before she could be promoted. Complainant states she told S1 this was unfair because she had met all the requirements and received a satisfactory appraisal. She indicates she raised the issue with S2 when he became her second- line supervisor in January 2013 and she was promoted in February 2013, but the promotion was not backdated to October 2012, when it should have occurred. S1 states that when Complainant asked her about promotion, she stated she wanted to make sure Complainant continued on the right track before recommending her for promotion. She explains that employees sometimes successfully completed plans, but then lapse or return to sub-standard performance. S1 also relates that when S2 became her second-line supervisor in January 2013, one of the items she briefed him on was Complainant’s eligibility to be promoted to GS-11 and 0120151461 7 expressed that she felt Complainant was on the right track and he should take the necessary action to promote Complainant. The Labor and Employee Relations Specialist (LERS) explains that promotion from GS-9 to GS- 11 after serving one year at the GS-9 level is not automatic, even if the employee received a satisfactory year-end evaluation. He states that GS-11 is considered the journeyman level, and the employee must demonstrate that he or she has the potential to satisfy the performance elements for the GS-11 position, which includes working individually with a minimum of supervision. LERS further states that an employee working under a PAP has not demonstrated the ability to work independently or with a minimum of supervision. With respect to Claim L, Complainant states she noticed on November 6, 2012, that her sick and annual leave balances had been changed. She further indicates she was given advanced sick leave for her absences in April 2012, and the annual leave she had been forced to take by management was restored. Complainant states that S1 and S2 did not inform her that her leave was going to be adjusted or explain the reason for the adjustment. S1 asserts that Complainant requested advanced sick leave to cover a two-week absence in March 2012, but S2 told her advanced sick leave was not available and she had to use annual leave. She indicates that Complainant’s third-line supervisor (S3) told her in late 2012 that the Agency had modified its policy with respect to granting advanced sick leave to employees and Complainant should have been approved for advanced sick leave in March 2012. S1 states that S3 told her to adjust Complainant’s records to show advanced leave to cover her March 2012 illness and to restore the annual leave that Complainant used in lieu of sick leave. S1 further contends she did inform Complainant that her time and attendance records would be adjusted, and Complainant did not ask any questions or object. S1 also states that Complainant did not raise any issues after her time and attendance records were adjusted in or about November 2012. With respect to Claim M, Complainant asserts that on October 2, 2012, she notified S1 that she felt bullied by a co-worker who refused to assist her, was undermining the work she had performed on a claim, and was gossiping and spreading malicious rumors about her. She indicates that on June 28, 2013, she reported more bullying to S1 and S2, after the co-worker yelled at her, tossed paperwork on her desk, and refused to take an appointment. Complainant also states that S1 and S2 promised to follow up on the matter, but she never received a response from either supervisor. S1 asserts that following the October 2, 2012 e-mail from Complainant about her coworker allegedly bullying her, she immediately made an inquiry into the matter. She indicates Complainant previously made several allegations of bullying, each of which she followed-up on and usually determined that the allegations were unfounded. S1 relates that Complainant has had disputes with every SR and CR in the office, and these usually involved whether Complainant should assist other staff, which causes disruption or tension among them. 0120151461 8 S2 states that following Complainant’s allegations that a co-worker had bullied her, he spoke with both parties, another co-worker, and S1. S2 indicates the nature of the dispute appeared to be based on work-related tension, so he worked to resolve the tension among the employees and informed Complainant that he had followed up on the matter. S2 also states that Complainant made several claims that she felt bullied, but it usually appeared that these were work-related disagreements rather than harassment or bullying. He further indicates that he urged Complainant several times to work better with other team members, and she said she would. 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the 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”). To establish a claim of harassment 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 classes; (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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). We agree with the analysis and conclusions reached by the Agency in its final decision. Specifically, we note that even assuming the facts in the light most favorable to Complainant, she has not demonstrated that she was subjected to the conduct at issue based on her prior EEO activity. Other than Complainant’s own uncorroborated assertions of her belief that her prior protected activity motivated management officials, the record is devoid of evidence to support such a finding. We also find that Complainant has not established that the events were severe or pervasive such that a legally hostile work environment existed. Accordingly, we find that Complainant failed to present sufficient evidence to support her claims as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 0120151461 9 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). 0120151461 10 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 16, 2017 Date