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

Equal Employment Opportunity Commission

Dec 19, 2022

Appeal No. 2022003175 (E.E.O.C. Dec. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dortha G.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2022003175 Agency No. HQ-21-0447-SSA DECISION On May 19, 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 April 18, 2022, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 At the time of events giving rise to this complaint, Complainant worked as a Senior Attorney Advisor at the Agency’s Louisville National Case Assistance Center (NCAC) in Louisville, Kentucky. On August 16, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (58) when: 1. beginning on October 26, 2020 and ongoing, management created a chronically stressful work environment, continually assigned a voluminous, convoluted, and difficult workload that is not fair, imposed unfavorable working conditions as caseloads are unrealistic, exceedingly difficult, and goals and timeframes are 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. 2022003175 2 unattainable, and Complainant was reassigned to a new supervisor who was authoritative, rigid, and inflexible; 2. In May 2021, she was reassigned to a new supervisor who was an authoritarian, rigid, and inflexible.2 Complainant stated that she was constantly assigned cases that could not realistically be completed in the allotted timeframes but was not credited for the actual time spent drafting the decisions. See Report of Investigation (ROI) at 118. She asserted that the excessive workload began when her office was realigned to the Louisville/St. Louis NCAC and she and the other Senior Attorney Advisors started getting nonstop voluminous, complicated cases. See ROI at 120. She further alleged that although the Agency has a duty to consider factors such as case complexity and size of the records, the Agency’s performance rating does not actually reflect the actual time spent drafting a decision. See ROI at 121. She asserted that younger employees, the Attorney Advisors, are given a lighter workload and their case records are generally much shorter than those assigned to the Senior Attorney Advisors. See ROI at 126. She stated that she believed the excessive workload given to Senior Attorney Advisors was “being used to force [] older employees out.” See ROI at 123. 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). 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 found that Complainant’s harassment claim failed because Complainant could not establish that any of the alleged incidents of harassment were, in fact, due to her age and because her allegations concerned routine work assignments and instructions which do not amount of harassment. The decision further found that Complainant had not established a claim of disparate treatment because she had not identified any similarly-situated employees who were treated more favorably but that even assuming arguendo that Complainant could establish a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not establish that any of the reasons were a pretext for discrimination. The decision therefore concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2 The Agency accepted claim 2 as a discrete claim of disparate treatment, in addition to one of the incidents of alleged harassment. See Report of Investigation (ROI) at 68-70. 2022003175 3 CONTENTIONS ON APPEAL On appeal, Complainant first argues that the Agency did not adequately develop an impartial record. Complainant further argues that the Agency applied the wrong legal standard and that the Agency is continuing to enforce the Decision Writers Productivity Index (DWPI) which a judge previously found invalid because it arguably had a disparate impact on older employees.3 In response, the Agency contends that its decision applied the correct standard and correctly found that Complainant did not establish that any of the Agency’s actions or the alleged harassment were due to her age. 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”). Adequacy of the Investigation As an initial matter, we will address Complainant’s challenge to the adequacy and impartiality of the investigation. Investigations of discrimination complaints are governed by 29 C.F.R. § 1614.108 and the instructions contained in the Commission's EEO MD-110. See EEO MD-110, Chap. 6 (“Development of Impartial and Appropriate Factual Records”). An adequate agency investigation is one that is developed impartially and contains an appropriate factual record. 29 C.F.R. § 1614.108(b). “An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.” 29 C.F.R. § 1614.108(b); EEO MD- 110, Chap. 6, § § I, IV.B., IV.C. An investigator must be unbiased, objective and thorough. Id. at § V.C. The investigator must obtain all relevant evidence from all sources regardless of how it may affect the outcome. Id. at § V.D. We note that by failing to timely request a hearing before an EEOC Administrative Judge, Complainant declined the opportunity to develop the record through discovery and to cross examine witnesses. 3 We note that the Agency’s use of the DWPI and any disparate impact it might have on older employees was not among the accepted claims before the Agency and the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (April 22, 2004). 2022003175 4 Complainant’s only specific contention regarding the inadequacy of the investigation is to contend that the Agency should have investigated the workload of the Attorney Advisors. We find, however, that because the Attorney Advisors by definition have different position titles, lower grade levels, and less experience than the Senior Attorney Advisors, information regarding their workloads would not be relevant to any claim that Complainant herself was singled out for disparate treatment or harassment due to her age. To the extent Complainant argues the information was relevant to her disparate impact claim raised on appeal, we note that a disparate impact claim was not included among the claims accepted for investigation and as such, is not relevant to this appeal. As to Complainant’s challenge to the impartiality of the investigation, Complainant has not specifically identified any evidence of impartiality aside from a general concern about the Agency investigating itself, which without more, is simply insufficient to support her assertion of any impropriety on the Agency’s part. Upon our review of the record, we find that it was adequately developed such that we can draw conclusions as to whether discrimination occurred. Hostile Work Environment To establish a claim of hostile work environment harassment, Complainant must show that: (1) she is a member of 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 the 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). In this case, we find that Complainant’s harassment claim fails because there is no evidence in the record to indicate that any of the alleged incidents of harassment were due to her age. Rather, Complainant herself stated that she believed the alleged harassment was meted out to all Senior Attorney Advisors and that it all began when she and the other Senior Attorney Advisors were reassigned to the NCAC.4 See ROI at 122. She further acknowledged that her belief that the harassment was due to age is because “it is well known that Senior Attorneys are generally the oldest attorneys [] because you need more experience to be promoted to a Senior Attorney position, which means you would have more years in the position.” See ROI at 128. Similarly, the Unit Manager explained that generally Senior Attorney Advisors are promoted due to their expertise with the decision writing workload and their efficiency with the decision writing process. See ROI at 251. 4 To the extent Complainant appears to argue that the harassment is due to the reassignment to the NCAC, we note that being assigned to the NCAC is not a protected basis under any of the EEO laws. 2022003175 5 The Supervisory Attorney Advisor agreed that generally Senior Attorney Advisors at the GS-13 level are expected to handle more complicated and difficult cases rather than the GS-9 to GS-11 attorneys. See ROI at 267. There is no evidence that Complainant was somehow singled out for harsh treatment because of her age. In addition, to the extent Complainant argues that the harassment is the same for all Senior Attorney Advisors, we note that being a Senior Attorney Advisor is not a protected basis under any of the EEO laws. See Mac O. v. Consumer Financial Protection Bureau, EEOC Appeal No. 2021004284 (Nov. 10, 2021). Moreover, we find that all of the alleged management conduct amounts to “common workplace occurrences,” such as routine work assignments, instructions, and admonishments, which the Commission has repeatedly held does not rise to the level of hostility necessary to constitute harassment. See Gray v. U. S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). To the extent that Complainant alleges that she subjectively feels her supervisor is “authoritative, rigid, and inflexible,” we note that such a dispute with management style is simply not severe or pervasive enough to meet the objective standard required to establish a hostile work environment. See Mattson v. Dep’t of Homeland Sec’y, EEOC Appeal No. 0120052563 (July 3, 2007). In addition, harassment, as the term is used in EEO cases, refers to more than being subjected to stress. See Morata v. U.S. Postal Serv., EEOC Appeal No. 01912775 (Oct. 4, 1991). Disparate Treatment As an initial matter, we reject Complainant’s argument that the Agency erred by applying the McDonnell Douglas burden-shifting standard defined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to this case brought under the ADEA. Contrary to Complainant’s argument, Babb v. Wilkie, __ U.S. __, 140 S.Ct. 1168 (2020) does not state that the McDonnell Douglas standard does not apply to ADEA cases, rather that in order to obtain relief such as reinstatement, backpay, or compensatory damages, an ADEA plaintiff must show that age discrimination was the but-for cause of the employment action. See Babb, 140 S.Ct. at 177-78. The Commission has, accordingly, continued to apply the McDonnell Douglas standard in age discrimination cases. See, e.g., Marguerite L. v. Social Sec’y Admin., EEOC Appeal No. 2021002765 (April 27, 2022) (stating that the Commission applies the McDonnell Douglas standard to ADEA cases). Under this analysis, a complainant initially must establish a prima facie case of discrimination. A complainant may do so by presenting facts which, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep’t of Community Affs. v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. at 253. Once the agency has met its burden, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency’s action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. 2022003175 6 This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). We note that Complainant has not identified any similarly-situated employees who were treated more favorably. In addition, we cannot find that being reassigned to a different supervisor constitutes an adverse employment action as Complainant does not allege that she suffered any change in the terms and conditions of her employment and therefore, we find that Complainant did not establish a prima facie case. See Cheney v. Dep’t of the Air Force, EEOC Appeal No. 0120060647 (Sep. 7, 2007). However, even assuming arguendo that Complainant could establish a prima facie case, we note that there is simply no evidence to indicate any unlawful motive in reassigning Complainant to a different supervisor. The Unit Manager stated that Complainant and one other Senior Attorney Advisor was reassigned to the supervisor and explained that generally, the Senior Attorney Advisors have been assigned to one supervisor to allow the supervisor to keep their assignments consistent. See ROI at 251-52. The Commission has repeatedly held that agencies have broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation, which is not present here. See Complainant v. Dep’t of Veterans Affs., EEOC Appeal No. 0120130083 (Aug. 8, 2014). The EEOC does not have either the authority or the capacity to stand as the super-personnel department for any agency. See King-Ellis v. U.S. Postal Serv., EEOC Appeal No. 01A51124 (May 4, 2005). 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 finding that Complainant did not establish that she was subjected to discrimination as alleged. 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. 2022003175 7 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). 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. 2022003175 8 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 December 19, 2022 Date