Hilda H.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 25, 2017

0120142944 (E.E.O.C. Jan. 25, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Hilda H.,1
Complainant,

v.

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

Appeal No. 0120142944

Hearing No. 541-2011-00219X

Agency No. DEN-10-941-SSA

DECISION

On August 19, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s July 17, 2014, final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e et seq. Our review is de novo. For the following
reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Service
Representative, GS-8, at the Agency’s District Office in Aurora, Colorado.

On October 27, 2010, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her race (Native American) and sex (female) 2
when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

2 Complainant initially also claimed age discrimination but withdrew the basis of age after the
pre-hearing conference and before the hearing.
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1. Complainant was not selected for a Claims Representative, GS-9/11, position; and

2. Complainant was subjected to a hostile work environment on the basis of her
religion (Native American Church) when:

a. In December 2010, Complainant’s Supervisor met with her to discuss a
customer complaint and mistreatment of members of the Hispanic
community;

b. On January 13, 2011, management questioned Complainant about her work
at an immigration event;

c. On January 28, 2011, management denied Complainant’s request for
advance sick leave;

d. On February 2 and 3, 2011, management met with Complainant to discuss
additional complaints from customers;

e. On February 23, 2011, Complainant’s Supervisor met with her to discuss
her interviewing skills with a number of customers;

f. On March 1, 2011, Complainant’s Supervisor did not approve a request to
leave at 3:00 p.m. until 2:45 p.m.;

g. On March 4, 2011, Complainant’s Supervisor issued her a Letter of
Reprimand;

h. On April 8, 2011, management asked Complainant why she referred a
customer to a coworker;

i. On April 14, 2011, management questioned Complainant about old,
unchecked voice messages; and

j. On April 15, 2011, Complainant’s Supervisor called her while she was on
approved leave.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing on January 6-8, 2014, and issued a decision on June 30, 2014.

The AJ found that no discrimination occurred. The record reflects that Complainant began
working for the Agency in 1995. Complainant applied for the Claims Representative position
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at issue, was found qualified, and was referred to the selecting official for consideration. The
selecting official was the District Director. According to the selecting official, she and three
other managerial officials discussed the qualifications of the several candidates from the Aurora
District Office who were on the best qualified list. The selecting official stated that
Complainant was considered a good applicant for the position but needed further development
or improvement in several areas. These areas included oral and written communication,
customer service, and dependability. Complainant also had problems concerning time and
attendance, which resulted in counseling from her Supervisor. In terms of dependability, the
selecting official noted that Complainant sometimes needed supervisory follow-up and
reminders to get her assignments completed in a timely manner.

The AJ observed that Complainant had some difficulties because a number of customers
believed she was Hispanic and sometimes became frustrated because she does not speak
Spanish. Complainant had several details into the Claims Representative position. The AJ
stated that Complainant regularly conducted outreach and attended naturalization ceremonies to
provide information to new citizens, brought in Indian tacos to work, worked with the Native
American Research Fund and the Asian Pacific Advisory Council, and received a number of
awards up until 2009.

With regard to the selectee (Caucasian, male), the selecting official stated that he was
considered the best applicant even though he had been a Service Representative for only two
years. The selecting official stated that the selectee was highly recommended by his
Supervisor for the position and managers unanimously believed the selectee had outstanding
analytical ability, excellent written and oral communication skills, very good job knowledge,
and superior customer service skills. The selecting official stated that Complainant had
significant experience as a Service Representative and had demonstrated improvement in some
areas of performance, but that she nevertheless was less qualified for the position than the
selectee.

The AJ observed that the selecting official had promoted twelve Service Representatives to
Claims Representatives positions, and that four of them were African-American, three were
Caucasian, four were Hispanic, and one was Asian-American. The AJ noted that the selecting
official promoted a Native American to both an Operations Supervisor and an Assistant District
Manager position.

With regard to the incidents that Complainant maintained constituted a hostile work
environment, Complainant stated that on January 28, 2011, she learned that her request for
advance sick leave was denied. The AJ stated that Complainant suffered from a number of
chronic medical issues. The AJ noted that in addition to Western medical treatment,
Complainant sought treatment in Arizona through traditional Native American methods.
Complainant planned to attend a ceremony that would last several days with the goal of
resolving her medical problems. The AJ pointed out that Complainant also took sick leave as a
single mother of three children and could not afford to take leave without pay. The AJ stated
that for the use of advance sick leave, the Agency is entitled to request medical documentation
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to demonstrate that there is a medical need for the leave. Complainant provided a note from
her medical provider, a Registered Nurse, which stated that she had a chronic problem and
treatment was medically necessary. The Agency required that the medical documentation
indicate that Complainant’s condition was severe and management did not regard medically
necessary to be the same as a serious medical condition. Complainant was several days into
her leave when the Agency concluded that she did not qualify for advance sick leave.
Complainant was notified and she returned to work early.

In another matter, on March 1, 2011, Complainant requested leave because her son was sick at
school and she needed to pick him up. The Supervisor told Complainant that she was unsure if
she could allow her to go because another employee was absent. Complainant was
subsequently informed at 2:45 p.m. that the other employee had returned and there was
sufficient coverage to permit her to leave.

On March 4, 2011, Complainant’s Supervisor issued her a Letter of Reprimand. This was
based on four customer complaints about Complainant that had been received in December
2010 and January 2011. The complaints indicated that Complainant had been rude, unhelpful,
and not listening well or not adequately responding to the problem. The Supervisor had met
with Complainant on February 23, 2011, and on other occasions about her interviewing skills.
The AJ noted that if a Spanish-speaking person asked Complainant if she spoke Spanish,
Complainant was cold and unhelpful.

The matter raised by Complainant involving management questioning her about her work at an
immigration event concerned a complaint that she had not issued receipts to people applying
for a Social Security number. Complainant’s Supervisor investigated the matter and it was
determined that Complainant was not at fault and she was not disciplined.

An additional issue concerned Complainant responding to her voice messages. The Agency
had a policy that Service Representatives should return phone messages within 24 hours. On
April 14, 2011, Complainant was questioned about old, unchecked voice messages.
Complainant maintained that her voice messages were current but a report indicated otherwise.
The Supervisor requested that Complainant log into a phone and then log into her voicemail.
This revealed that Complainant had several unreturned calls over 24 hours old and had not
checked messages in two weeks. Complainant stated that the messages were played through a
speaker phone and she considered this embarrassing. The Supervisor remarked that
Complainant became angry, loud, and belligerent, and accused the Operations Supervisor of
being out to get her.

Complainant claimed another example of harassment occurred on April 8, 2011, when her
Supervisor stated to her in a rude manner that she should not have referred a customer to a
Claims Representative because the Claims Representative was not available and the customer
had to wait for some time. Complainant maintained the customer told her that she had an
appointment with the Claims Representative and she followed protocol by sending the customer
to her. The Supervisor asserted that Complainant became defensive as she attempted to
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explain to Complainant why she should have referred the customer to a different Claims
Representative.

With respect to her Supervisor calling her while she was on approved leave, Complainant
stated that her Supervisor called her at the doctor’s office to ask her when she would be
returning to work. Complainant asserted that she had approved leave to take her son to the
doctor and that she told her Supervisor that she would return to work as soon as the medical
appointment was completed. The Supervisor stated that she needed to know Complainant’s
return time in order to decide whether to approve another employee’s request for leave.

The AJ noted that Complainant submitted evidence that the selecting official made a statement
to her about her lack of facial expression causing people to be unable to read her during
interviews. Complainant asserted that she told the selecting official that was part of her
culture, that it is a matter of respect not to look people in the face, especially men.
Complainant also claimed that when the Agency set a 10-15 minute time frame for Service
Representatives to complete interviews and she went beyond that, her Supervisor would send
her a message inquiring if there were any problems. Additionally, the AJ noted that
Complainant claimed that the selecting official stated that the black women in the office are too
loud and that the selecting official told one of Complainant’s coworkers to take off her turban
and to save it for Black History month. Further, Complainant asserted that a temporary
supervisor joked to her that she could not translate a document, which was a repetition of what
some Spanish-speaking individuals had asked Complainant to do.

With regard to the selection at issue, the AJ observed that management officials testified that
the selectee had an excellent rapport with customers and no customer complaints. It was
acknowledged that the selectee had exceptional job knowledge and productivity. In contrast,
the AJ stated that Complainant used considerable unscheduled leave and the number of
customer complaints received about her raised a number of questions about her job knowledge
as well as her customer service skills. The AJ noted that Complainant argued that other
individuals who were promoted had leave or lateness issues like her. However, the AJ pointed
out that the selectee had no such issues. The AJ found that there is no evidence that the
Agency’s stated reasons for its selection were pretext for discrimination.

As for the claim of a hostile work environment, the AJ found that the Agency articulated
legitimate, nondiscriminatory reasons for the disciplinary actions and leave actions at issue.
The AJ further found that Complainant failed to establish that these actions were based on her
protected groups. According to the AJ, all of the discussions concerned job-related
performance, such as responding to inquiries or completing work. The AJ stated that
Complainant offered no evidence that others were not held to the same standard as her with
regard to being counseled about customer complaints. With regard to remarks uttered by the
selecting official about Complainant’s lack of facial expression, completing her interviews on
time, and telling an employee to take off her turban, the AJ reasoned that these incidents did
not raise an implication of discrimination based on Native American heritage. The AJ found
that these incidents were neither severe nor pervasive. The AJ acknowledged that some of the
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incidents reflect less than optimal supervision, such as checking voicemails in an open cubicle.
However, the AJ found that the record lacked evidence that these incidents were
discriminatory. The AJ pointed out that Complainant acknowledged that she was late for
meetings, took considerable unscheduled leave, and had customer complaints.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged. Thereafter, Complainant
filed the instant appeal but did not submit a statement or brief in support.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

As for Complainant’s nonselection for the Claims Representative position, we shall assume
arguendo that Complainant set forth a prima facie case of sex and race discrimination. The
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Agency asserted that the selectee was chosen rather than Complainant because the selectee was
highly recommended by his Supervisor, had demonstrated exceptional productivity, job
knowledge and dependability, and possessed strong analytic and customer service skills. In
contrast, Complainant was merely recommended by her Supervisor and her job performance
reflected some problems in the areas of customer service skills, reliability, and lateness to
work and meetings. We find that the Agency articulated legitimate, nondiscriminatory reasons
for its selection.

Complainant attempts to establish pretext by pointing to remarks allegedly made by the
selecting official that targeted black women in the office and an employee wearing a turban.
However, even if the selecting official did utter these comments, we do not discern how the
remarks evidence animus toward Complainant based on her Native American race.
Complainant argues that she has substantially more experience as a Service Representative than
the selectee. Although it is true that Complainant clearly has more experience in that capacity
than the selectee, that factor is outweighed by a comparison of their overall job performance.
The record establishes that the selectee performed more effectively than Complainant in several
important aforementioned job criteria. It is evident that Complainant’s qualifications were not
as impressive as the selectee’s credentials. We find that Complainant has not established that
the Agency’s stated reasons for her nonselection were pretext intended to mask discriminatory
motivation.

Complainant claims that she was subjected to harassment by management officials. To
establish this claim, 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). 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); EEOC Enforcement Guidance at 6 (March 8, 1994).

Complainant presents as examples of the harassment incidents where she was counseled about
her interviewing skills and customer complaints and received a Letter of Reprimand, denied
advance sick leave after she had begun her traditional healing treatment in Arizona, did not
receive leave in a timely fashion, was contacted while on leave at her son’s medical
appointment, questioned about her work at an immigration event, counseled about old
voicemail messages and her voicemail messages were played on a speaker phone in an open
cubicle, and asked why she referred a customer to a coworker.

The Agency explained that four customer complaints were received pertaining to interviews
that Complainant had conducted. The complaints indicated that Complainant had been rude,
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unhelpful, and not listening well or not adequately responding to the problem. Further, the
collective bargaining agreement required that management talk with Service Representatives
about customer complaints. As to the belated denial of the advance sick leave request, the
Agency stated that it was entitled to seek medical documentation that there was a medical need
for the leave. Complainant provided a note from her medical provider, a Registered Nurse,
which stated that she had a chronic problem and treatment was medically necessary. The
Agency, however, required that the medical documentation indicate that Complainant’s
condition is severe and management did not regard medically necessary to be the same as a
serious medical condition. As for the other matters related to leave, the Agency explained that
in both instances Complainant’s Supervisor needed to be sure she had sufficient staff coverage.

With regard to the voicemail messages, the Agency stated that there was a discrepancy
between Complainant’s assertion that she had no old voicemail messages and a report
indicating she did. The Agency explained that is why it had Complainant log in and play her
voicemail messages which revealed she had several old messages. As for questioning
Complainant about her work at an immigration event, the Agency stated that there was a
complaint that she had not issued receipts to people applying for a social security number.
Complainant’s Supervisor investigated the matter and it was determined that Complainant was
not at fault and she was not disciplined. In terms of Complainant being asked why she referred
a customer to a certain coworker, Complainant’s Supervisor stated that she inquired because
the Claims Representative was not available and the customer had to wait for some time. We
find that the Agency presented legitimate, nondiscriminatory reasons for its actions in the
matters at issue.

Upon review of Complainant’s arguments, we find that these incidents were not sufficiently
severe or pervasive to constitute a legally hostile work environment. Moreover, we discern no
basis to conclude that they occurred based on Complainant’s religion. We note that the inquiry
as to the voicemail messages could have been handled with more discretion but that situation
nevertheless did not rise to the level of harassment. The Agency unfortunately did not deny
Complainant advance sick leave until she had begun her healing treatment, but the Agency’s
reason for the denial was reasonable and not indicative of discriminatory animus. As for other
matters at issue, the Agency took measures that were appropriate in order to maintain adequate
staffing and/or improve Complainant’s job performance. We find that Complainant has not
established that she was subjected to a legally hostile work environment, as the matters were
not severe or pervasive and she has not shown that the adverse actions taken by the Agency
were connected to her protected bases.

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 order implementing the AJ’s
decision following a hearing finding no discrimination.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 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. The requests 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 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.
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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

January 25, 2017
Date