Karen C.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 10, 2020

2020001738 (E.E.O.C. Nov. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karen C.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020001738 Hearing No. 480-2017-00404X Agency No. SF16-0685-SSA DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 15, 2019, final order 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 Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Service Representative, GS-8, at the Agency’s Los Angeles Teleservice Center (LATSC). From April to August 2016, Person A was Complainant’s first level supervisor. Person A normally worked as a Social Insurance Specialist for the Office of Quality Review, but temporarily came to LATSC through a developmental program. Person B was Complainant’s third level supervisor. On May 31, 2016, the day after Memorial Day, Complainant experienced a vertigo incident and did not come to work for the first part of the workday. She requested sick leave for her absence. The facility’s policy required a doctor’s note to support sick leave the day before or after a holiday. 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. 2020001738 2 Person A approved Complainant’s sick leave request conditioned on her providing a doctor’s note. Complainant gave Person A a doctor’s note from May 24, 2016. Person A told Complainant she had to provide a doctor’s note specific to the May 31 incident and informed her she had 14 days to do so, or she would be charged AWOL for the absence. Complainant did not provide documentation related to her absence on May 31, and she was charged AWOL for the part of the day she was absent. In June 2016, Complainant came to work one day wearing a shirt with the phrase “Donald Troup 16 one more time” written on it. Coworkers observed the shirt and reported to management that Complainant was wearing a shirt with then-candidate Donald Trump’s name on it. The incident was reported to upper management and the Office of General Counsel. An investigation was conducted and Complainant was given training on Hatch Act compliance. For Customer Service Representatives, like Complainant, a key job task is taking calls from the public. This job task is so important, that “management has to account for the time that a Customer Representative is off the phone and not taking calls from the public.” At the LATSC workers get one morning break (15 minutes long) and one afternoon break (15 minutes long) and a lunch break (30 minutes long). On the morning of July 8, 2016, Complainant logged two approximately 15- minute periods off the phone. S1 emailed Complainant, asking if she had work-related reason to be off the phone for 12 minutes, in addition to her morning break. On July 11, 2016, Complainant replied by email stating simply, “Powdered my nose.” S1 approached Complainant and sought clarification, “as this phrase can be construed to mean many things, such as applying makeup or using the restroom. I told her she should be as clear as possible especially when management inquires about unaccounted time off the phones.” According to Complainant, she told Person A “Any U[S] born citizen knows the phrase powder my nose it has been around for centurys[sic]. [Person A] became hostile and pointed her finger at me and g[ave] me an oral warning a direct order never to say that again. She is from [C]uba [and] I spoke in her language Spanish and said tiango kyee el bonjo [sic] meaning I had to use the restroom in Spanish.” Person A similarly recalled that “Complainant told me I must not understand what ‘powder my nose’ means because English is not my first language.” Person A confirmed that Complainant ended the conversation by stating, “Or maybe I should say ‘Tengo que ir al bano.’” On June 8, 2016, Person B sent an email to all LATSC employees with the subject line “Optional read - Business Principle Tip for the Day.” The email stated, “Complaining, wallowing in self- pity, and blaming others in the face of difficulty gets people addicted to victimhood. That adopted attitude of weakness can spread like a cancer. It causes learned helplessness and habitual pussification.” 2020001738 3 Later the same day, Person B sent an email apologizing to all LATSC employees stating: Earlier today, I released a message in an effort to inspire team building and cohesiveness. After sending the email, I realized that the language was objectionable and unprofessional. Though the intent of the message was to be inspiring, I now realize that the content and tone of the message as a whole does not reflect the core values of our agency or myself. I quickly recalled that message but I realize some of you may have seen it before it was recalled. My apologies if anyone was offended by the message. I in no way meant for my email to be viewed this way. Please accept my deepest apology and know that I remain committed to ensuring and fostering a workplace environment that is positive and professional. On August 31, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her to unlawful discrimination. As defined by the EEOC Administrative Judge (AJ), Complainant alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity when: 1. She was marked AWOL for a half day; 2. She was the subject of a Hatch Act investigation; 3. She was instructed to more clearly account for her time away from the phone; and 4. She received an unwelcome email from her third level supervisor. 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 requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on November 4, 2019. In his decision, the AJ noted that the Agency offered a legitimate, nondiscriminatory reason for charging Complainant AWOL. Specifically, Person A explained the AWOL was justified because Complainant did not provide a doctor’s note as directed and required by policy. The AJ noted Complainant did not show Person A’s explanation was pretextual or that Person A was otherwise discriminatorily/retaliatorily motivated. Regarding the Hatch Act violation, the AJ noted this claim could be dismissed as a collateral attack on the Act’s own enforcement process. However, assuming the AJ had jurisdiction to hear this allegation, he found the Agency offered a legitimate, nondiscriminatory reason for its action. Complainant admitted she wore a shirt with “Donald Troup 16 one more time” written on it.2 2 Complainant stated that the shirt said “Troup” not “Trump.” Complainant stated that her friend’s name is “Donald Troup” and that she was planning on going to a club after work to celebrate his birthday. Separately, Complainant also stated that her husband was named “Troup”, but then 2020001738 4 Person B and Person A reported the incident up the chain of command based on coworker concerns. The AJ noted it was immaterial whether “this satirical play on then-candidate Donald Trump’s campaign” violated the Hatch Act. The AJ found Complainant produced no evidence that the responsible management officials overlooked similar incidents by coworkers outside of her protected bases. Nor did she produce any other evidence tending to demonstrate the decision to investigate was motivated by discrimination or retaliation. Regarding the “powdered nose” discussion, the AJ noted Person A stated her discussion was justified because the comment was ambiguous and did not adequately explain why Complainant was away from the phones that morning. The AJ noted Complainant produced insufficient evidence to demonstrate Person A’s explanation was pretextual, or that she was otherwise discriminatorily/retaliatorily motivated. Further, the AJ found Complainant’s “sarcastic use of broken Spanish and other race baiting comments [wa]s appalling.” Regarding Person B’s email, the AJ found the email was properly analyzed as an incident contributing to a hostile work environment. The AJ determined there was no evidence linking the email to Complainant’s race. The AJ recognized the email, however, was facially linked to Complainant’s sex by its use of the word “pussification.” The AJ stated this appeared to be “an unclever portmanteau3 of pussy and pacification.” Nevertheless, the AJ found the single incident not sufficiently severe to constitute a hostile work environment based on sex. Regarding retaliation, the AJ noted that the email need not necessarily be based on a retaliatory motive to be actionable. Rather, the central question is whether the conduct at issue would dissuade a reasonable person from engaging in the EEO process. The AJ noted Person B’s email was “plainly inappropriate.” The AJ stated “[i]n a vacuum, its content might have a chilling effect.” However, the AJ noted the email was immediately followed by a strong retraction and apology. The AJ determined “[c]onsidering the two emails together, under the totality of the circumstances, a reasonable person would not be dissuaded from engaging in EEO activity.” The Agency subsequently issued a final order on November 15, 2019. The Agency’s final order fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. subsequently said “Troup” was not her husband. Complainant noted that she called lots of people her husband. 3 “Portmanteau” is commonly defined as a word blending the sounds and combining the meanings of two others, for example motel (from ‘motor’ and ‘hotel’) or brunch (from ‘breakfast’ and ‘lunch’). Also, more commonly, it is defined as a large trunk or suitcase, typically made of stiff leather and opening into two equal parts. 2020001738 5 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2020001738 6 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 2020001738 7 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 10, 2020 Date