[Redacted], Charlene S., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022001375 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlene S.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2022001375 Agency No. HQ-21-0336 DECISION On January 14, 2022, 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 December 17, 2021 final decision concerning an 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. BACKGROUND Complainant began working at the Agency in 1990. Since 2004, Complainant has been a Supervisory Paralegal, Grade GS-14. Complainant’s current position with the Agency is Branch 2 Chief for the Office of Analytics, Review, and Oversight (OARO), within the Office of Appellate Operations (OAR), for the Division of Quality Review (DQ) in Crystal City, Virginia, and in Falls Church, Virginia. As of August 2020, Complainant’s immediate supervisor was the DQ Division Director (Asian, female, age 39, aware of Complainant’s EEO activity). Complainant’s second-level supervisor was the OAR Director of Operations, (Caucasian, male, age 49, aware of Complainant’s EEO activity). Complainant’s third-line manager was a then acting OARO Associate Commissioner (African American, female, age 46, aware of Complainant’s EEO activity). 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 2022001375 Four other branch chiefs were identified as comparators (Black woman, Asian woman, Caucasian man, Caucasian woman). Complainant did not know specifics regarding ages or EEO activity of those other branch chiefs. According to Complainant, she was the eldest African American woman in her Agency organization. On March 31, 2021, the Agency emailed employees encouraging them to apply for voluntary temporary deployment details with the Department of Health and Human Services (HHS) along the Southwest border to assist HHS efforts to support for unaccompanied migrant children. Applicants were required to obtain supervisor permission to apply. The email encouraged management to support the applications of subordinates who were in good standing. HHS would then select among Agency employees who applied for the detail. One of Complainant’s subordinate employees applied and was selected. Complainant and another branch chief also applied but were not detailed. On June 2, 2021, Complainant filed a formal complaint. Complainant claimed that the Agency discriminated against her based on her race (African American/Black), sex (female), and color (light complexion), as well as reprisal for prior protected EEO activity, when: 1. On March 17, 2021, management helped plan and support reversing a detail for a subordinate employee and did not inform Complainant until after it had taken place. 2. On April 30, 2021, management issued Complainant a midyear Performance Assessment and Communications System (PACS) appraisal discussion which did not appropriately represent her performance. 3. In May 2021, management denied Complainant’s request to transfer to Falls Church, Virginia. 4. In May 2021, management denied Complainant's request for a detail with the Department of Health and Human Services’ Support for Unaccompanied Children effort. 5. From September 1, 2020, to August 30, 2021, management subjected Complainant to harassment regarding communications with Complainant, time and attendance, denials of detail and transfer, awards, performance appraisals, false accusations, and working conditions.2 After an investigation into the complaint, 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. 2 On June 23, 2021, the Agency dismissed two of Complainant’s raised claims for untimely EEO counselor contact in accordance with 29 C.F.R. §§ 1614.105, 1614.107(a)(2). The Agency also procedurally dismissed another allegation for failure to state a claim under 29 C.F.R. §§ 1614.103 and 1614.107(a)(1). 3 2022001375 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), finding no discrimination. On January 14, 2022, Complainant filed a notice of appeal. In an email to the Commission, dated February 15, 2022, Complainant requested an extension. Complainant explained that she needed an extension because the Agency had informed her that her position description was “not parallel with” her job within the Division of Quality. Complainant stated that this called into question the Agency’s ruling on her case. The Commission denied Complainant’s extension request because the original 30-day time frame for Complainant to submit a brief or statement in support of her appeal had expired before she requested the extension on February 13, 2022. 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). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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”). Disparate Treatment: Claims 1 - 4 As did the Agency, we reviewed Claims 1, 2, 3, and 4 in the context of disparate treatment discrimination. We applied the U.S. Supreme Court’s three-part evidentiary test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant had to establish a prima facie case by demonstrating she was subjected to adverse employment action under circumstances that would support her inferences of discrimination based on race, sex, age or in reprisal for engaging in EEO-protected activity. See Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The second burden was on the Agency to articulate legitimate and nondiscriminatory reasons for its actions at issue. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). If the Agency articulated a legitimate, nondiscriminatory reason for its actions, then our inquiry proceeds to the third step-whether Complainant has shown by a preponderance of evidence that the Agency’s reasons were pretexts to mask discriminatory motivations. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Without so finding, and only for purposes of this analysis, we assume that Complainant satisfied the prima facie element of her claims. However, the Agency has articulated non-discriminatory factors ultimately informed the personnel actions that Complainant alleged were based on her protected characteristics. 4 2022001375 Regarding Claim 1, Complainant’s first-line supervisor, the Division Director, explained that Complainant was not present at the during the morning of March 17, 2021, when management received notice, offering to extend one of Complainant’s subordinates on the HHS detail. At the time, Complainant was offline or packing-up for an office move out of the Agency’s facility in Crystal City, Virginia. As a result, the Division Director explained that she decided to immediately notify Complainant’s subordinate about the HHS detail extension being offered. After the subordinate had accepted the detail, the Division Director, acting in Complainant’s stead, facilitated continuing the detail for that the subordinate. Complainant was informed about her subordinate’s extended promotional detail thereafter in an email. Though Complainant felt disrespected in that she was not consulted about her subordinate’s HHS detail extension, we find that the Division Director legitimately exercised discretion in choosing to assist Complainant’s subordinate employee with continuing the HHS detail. Without evidence of a demonstrably discriminatory motive, the Commission cannot second-guess the business judgment of the Division Director concerning the subordinate employee’s detail. Camden v. Dep't of Justice, EEOC Appeal No. 0120093506 (July 27, 2012) request for recon. denied, EEOC Request No. 0520120603 (Jan. 31. 2013). Moreover, the Division Director stated that, in April 2021, she had also assumed the duties of another branch chief who was unavailable at the time that the other branch chief’s subordinate employee had been offered a detail at another agency. Regarding Claim 2, Complainant claimed that she was the only employee who received negative feedback on her PACS performance assessment for 2021. The Division Director stated that she had held individualized discussions about performance and advised all of the branch chiefs, not only Complainant, on their weaknesses and strengths of their performances. Complainant has challenged, as factually inaccurate, the Division Director’s comment that Complainant “generally” communicated effectively and was courteous with subordinate employees. Complainant maintained that the Division Director’s criticisms of her performance were vague and unfounded. To the contrary, the record revealed that, in this instance, the Division Director’s use of “generally” was appropriate. Here, Complainant did not persuade us that she was always effective in communicating with her subordinate employees. For example, according to the PACS performance discussion, earlier in the PCAS performance period, Complainant’s subordinate employee s had contacted the Division Director to report that they were experiencing IT access problems. Apparently, Complainant’s subordinates had attempted to report these matters directly to Complainant, but they had found Complainant incommunicado while she was teleworking. Furthermore, Complainant’s 2021 PCAS performance discussion was not entirely negative. For example, the Division Director praised Complainant for taking appropriate actions to lead her branch to achieve performance expectations in terms of productivity by the end of January 2021. Regarding Claim 3, Complainant stated that at the end of March 2021, she had emailed the Associate Commissioner requesting a transfer out of the Agency’s OARO and the Division of Quality because she felt her Division Director was creating a hostile work environment and tarnishing her reputation. Complainant asserted that her transfer request was rejected because of discriminatory animus. 5 2022001375 However, the Director of Operations explained that the Associate Commissioner acknowledged Complainant’s request, and referred the matter to the Agency’s harassment prevention officer. In May 2021, the harassment prevention officer closed the inquiry into Complainant’s accusations of a hostile work environment. The harassment prevention officer did not find harassment but made recommendations to the Director of Operations for improving the work environment. While those recommendations were being carried out, Complainant forwarded August 2021 emails to the Director of Operations that she claimed evidenced harassment by the Division Director. Based on the harassment prevention officer’s conclusions as well as those emails that Complainant submitted thereafter, the Director of Operations determined that the Division Director was not harassing Complainant. Because it was decided that Complainant was not being harassed, the Director of Operations denied Complainant’s request for transfer. The Director of Operations also stated that such voluntary transfers were rarely approved and then only when based on business needs. The Director of Operations also provided Complainant guidance on how to seek a transfer though existing transfer programs, including inter-office transfers and hard ship transfer. We likewise reviewed the email correspondence from August 2021 that Complainant cited to evidence harassment. Complainant has insisted that the Division Director was demeaning her by assigning Complainant to take notes at a meeting and then directing her to make corrections to the meeting notes. According to Complainant, the Division Director did not assign any of the other branch chiefs in DQ to take notes at their staff meetings. Even so, the Commission has long held that such administrative assignments and routine supervisory criticisms do not create a discriminatorily hostile work environment, but instead, they are common indignities of regular employment. Les B. v. Dep't of State, EEOC Appeal No. 2021002217 (June 2, 2022). Consequently, we find Agency management did not deny Complainant’s request to be transferred based on harassment. Regarding Claim 4, Complainant argued that management discriminatorily had not supported - her volunteering for the HHS detail opportunity as it had her co-workers. On April 15, 2021, Complainant emailed the Associate Commissioner to request supervisory approval. In her email, Complainant stated that she did not want her direct supervisor to be involved with her application for the HHS detail. The Associate Commissioner delegated the matter to the Director of Operations who promptly signed off on the requisite supervisory form in support of Complainant’s application for the detail on April 16, 2021. The Division Director acknowledged that the Director of Operations had approved Complainant’s application but stated that Complainant should communicate with her directly if selected. Complainant apparently was not selected. By May 2021, there were fewer children coming across the Southwest border, so HHS’ need for volunteers had “abated considerably.” The Agency explained that this was the reason Complainant was not selected for the HHS detail. We find this record is devoid of evidence to support Complainant’s position that the Agency somehow frustrated her effort to volunteer for the HHS detail. Whereas the Agency has presented non-discriminatory justifications, Complainant has failed to preponderantly evidence those justifications were pretexts to mask an actual unlawful motivation which had factored into any of the Agency’s decisions about her employment. 6 2022001375 As an initial matter, we note that, by declining to request a hearing before an EEOC AJ, Complainant forfeited the opportunity for further investigation that might have resolved possible credibility issues in the record. Cristobal F. v. U.S. Postal Serv., EEOC Appeal No. 0120180756 (June 19, 2019) (finding that “by choosing not to request a hearing before an AJ, a complainant waives an opportunity to further develop the record through discovery and to cross-examine witnesses”). Our pretext inquiry is unconcerned with bad judgment, impeccability, dislike, or mistake. Marvin W. v. Dep't of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question was not whether the Agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Alda F. v. Dep't of Health and Human Servs., EEOC Appeal No. 0120182538 (Nov. 27, 2019). Evidence of record simply does not support a finding that discrimination was the real reason. Therefore, we concur with the final Agency decision in that Complainant failed to prove disparate treatment discrimination pursuant to McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Harassment: Claim 5 In order to prevail on the harassment claim, Complainant must prove that the Division Director mistreated her because of her race, sex, age or because of her prior EEO-activity. Complainant must correspondingly show that the Division Director’s conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found it abusive. With respect to retaliatory harassment, she must show that the adverse actions that would dissuade a reasonable person from making or supporting a charge of discrimination. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); also EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) and n. 137 (Aug. 25, 2016). Only if Complainant satisfies her burden of proof with respect to both elements, abusive hostility, and discriminatory motive, can we hold the Agency labile for harassment. Regarding, Claim 5, Complainant failed to satisfy the elements for unlawful harassment. While Complainant clearly disliked the Division Director and felt that the Division Director showed favoritism to other branch chiefs, evidence of the Division Director’s discriminatory motive is absent. A fair reading of the record shows that instead of a hostile work environment, the Division Director’s actions that Complainant believed to be harassing instead amounted to personality conflicts, general workplace disputes, trivial slights, or petty annoyances. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision finding no discrimination or unlawful retaliation was established as alleged. 7 2022001375 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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. 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, a 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). 8 2022001375 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 January 31, 2023 Date