Matilda M.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 22, 2017

0120160043 (E.E.O.C. Nov. 22, 2017)

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

Matilda M.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120160043

Agency No. ATL-14-0037-SSA

DECISION

On September 17, 2015, 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
August 17, 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. and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Senior Case Technician at the Office of Disability Adjudication and
Review in Columbia, South Carolina. On December 17, 2013, Complainant filed an EEO
complaint in which she alleged that the Acting Supervisor for Group A, her immediate
supervisor at the time (S1-A), and the Hearing Office Director, her second-level supervisor (S2),
subjected her to a hostile environment because of her race (African-American), age (66), and
prior EEO activity (eight EEO complaints, six of which went formal) Investigative Report
Exhibit (IRE) 7, p. 2. She identified the following incidents as comprising her claim:

1. On October 25, 2013, S1-A addressed her as “Miss [her first name]” and threatened to
charge her with absence without leave (AWOL) in the presence of her coworkers; and

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.
0120160043

2
2. On October 30, 2013, ostensibly pursuant to a divisional reorganization, S2 placed
Complainant under the direct supervision of the Group C Supervisor (S1-C), from whom
she had been previously separated due to S1-C’s continuous harassment.

Complainant averred that on October 25, 2013, S1-A came to her desk and addressed her as
“Miss [her first name],” and that she told S1-A that she did not like being addressed in that
manner and asked S1-A not to call her that. Complainant stated that she tried to explain to S1-A
that she considered the remark a reference to slavery, and that S1-A did not want to talk about it.
Complainant emphasized that she considered being addressed as “Miss” followed by her first
name to be a racial slur like those uttered throughout the film, “Gone With the Wind.” IRE 7, p.
3. In addition, Complainant averred that when she informed S1-A that she needed to leave the
office, S1-A demanded to know where she was going and why and threatened to charge her with
AWOL if she did not provide a leave slip. Complainant characterized the incident as bullying.
IRE 7, p. 3. When asked about these incidents, S1-A admitted that she addressed Complainant
as “Miss [her first name]” and also stated that she apologized when Complainant told her that she
did not like being addressed in that manner. S1-A also denied that she threatened to charge
Complainant with AWOL. Rather, she stated that she reminded Complainant that employees
were always required to communicate with their supervisors if they were going to be absent from
the worksite. IRE 8, p. 3; IRE 8-1, p. 1; IRE 9, p. 3; IRE 9-1, p. 1; IRE9-2, p. 1.

Complainant averred that on October 30, 2013, she and several of her coworkers had been
moved from Group A to Group C, and were placed under the supervision of S1-C, against whom
Complainant had previously filed at least one EEO complaint. She asserted that S1-A and S2
were aware of her previous EEO activity and had moved her back under S1-C’s supervision
because of it. IRE 7, p. 4. S2 averred that she had decided to reorganize the division in order to
have an even number of employees within each group, thereby balancing the workload. S2 also
averred that the decision to reorganize was hers alone, and that the Chief Administrative Law
Judge and the union representative had agreed to the reorganization. IRE 8, p. 4; IRE 9, p. 4;
IRE 9-3, p. 1.

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 a Commission
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.

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
0120160043

3
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).

To ultimately prevail her harassment claim, Complainant must show that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of a protected basis. Alternatively, since Complainant has
alleged reprisal, she must prove that the actions of S1-A or S2 were harmful to the point that they
could dissuade a reasonable person from making or supporting a charge of discrimination.
Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). See also EEOC
Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3)
& n. 137 (Aug. 25, 2016). Only if Complainant satisfies her burden of proof with respect to all
of these elements, intent and either hostility or chilling effect, will the question of Agency
liability for harassment present itself.

We agree that Complainant has satisfied the first two elements of the harassment analysis. To
satisfy the third element, Complainant must show that in taking the various actions described in
the complaint – calling her “Miss [her first name],” challenging her about her use of leave, or
moving her from Group A to Group C - S1-A or S2 were motivated by unlawful considerations
of her race, age, or previous EEO activity. When asked by the investigator why she believed that
the actions of S1-A and S2 were based on her race, age, and prior EEO complaints, Complainant
replied that S1-A was a white female and reiterated her assertion that her prior complaints
involved claims of hostile work environment, discrimination, and disparate treatment. IRE 7, pp.
2, 5. S1-A denied that she participated in previous EEO activity and denied that she had
knowledge of any prior EEO activity involving Complainant. IRE 9, pp. 2-3. S2 also denied
having participating in previous EEO activity but acknowledged that she had heard that
Complainant had filed an EEO complaint against a former supervisor prior to her arrival. IRE 8,
pp. 2-3.

The record contains affidavits from several of Complainant’s coworkers. One coworker averred
that she overheard S1-A call Complainant “Miss [her first name]” but that they were all from the
0120160043

4
South and that was how they spoke. She also stated that Complainant complained about it quite
often, that several people in the office had experienced the problem with Complainant, and that
everyone tried to remember to address her either by her first name or by “Miss” followed by her
last name. IRE 11, p. 3. This coworker also stated that she did not hear S1-A refer to AWOL
and that S1-A was merely letting Complainant know what her options were when leaving the
office. IRE 11, p. 3. A second coworker averred that although management tended to play
favorites with certain employees, she did not believe that the actions of S1-A or S2 were racially
or age-motivated. IRE 10, p. 3. However, a third coworker who overheard S1-A call
Complainant “Miss [her first name]” averred that S1-A never called anyone else by his or her
first name proceeded by Mr. or Ms. She also averred that although she did not believe that S1-A
had discriminated against Complainant because of her race, she was not sure about age. Further,
she stated that as an African-American, she observed that S2 would often greet white females
when passing them in the corridor, but would ignore black females. Finally, the third coworker
stated that she believed that the work environment was hostile, noting that one “may as well use
racial slurs the way you are treated around here.” IRE 13, pp. 3-4.

What we are left with after reviewing the record are conflicting viewpoints among several
witnesses. As Complainant did not request a hearing, the Commission does not have the benefit
of an Administrative Judge’s credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Based
upon those facts, we find that Complainant has not presented evidence sufficient to show that
any of the incidents described in her complaint resulted from her statutorily protected classes or
her EEO activity. Because Complainant has not established a connection between her protected
status and the incidents in question, no further inquiry is necessary as to whether those incidents
rose to the level of harassment. Tynisha H. v. Dept. of State, EEOC Appeal No. 0120141395
(March 17, 2017).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that she was discriminated
against as alleged.

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.
0120160043

5
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).

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.

0120160043

6
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 22, 2017
Date