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

Equal Employment Opportunity Commission

Sep 12, 2022

Appeal No. 2021003499 (E.E.O.C. Sep. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erika H.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021003499 Agency No. SSA KC-20-0570 DECISION On June 2, 2021, 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 May 3, 2021 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 At the time of events giving rise to this complaint, Complainant worked as a Claims Technical Expert, GS-0105-12 at the Agency’s Des Moines Field Office in Des Moines, Iowa. Complainant’s supervisor who retired in April 2020, was the Operations Supervisor (S1). The Assistant District Manager was her second-level supervisor (S2) and the District Manager was her third-level supervisor (S3). On August 18, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female), age (60), and in reprisal for prior protected EEO activity 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. 2021003499 2 1. On May 27, 2020, management issued Complainant a suspension for five days; and 2. Complainant was subjected to harassment from January 28, 2020, and continuing to present in terms of disciplinary actions, suspension, time and leave, and working conditions.2 Complainant had been repeatedly advised that she would be considered absent without leave (AWOL) if she did not call in by the end of the morning flex-band or finish her tour of duty. The flex-band was a period of time during which employees were required to report for duty or contact the office if they were unable to report for duty. The morning flex-band for the Des Moines office was 7:00 a.m. - 8:45 a.m. On January 28, 2020 and February 24, 2020, Complainant failed to report to the office or call by the end of the morning flex-band. She was charged as AWOL for January 28 and February 24, 2020, from 8:45 a.m. to 9:00 a.m. and 8:45 a.m. - 9:15 a.m. respectively. On March 3, 2020, S1 issued Complainant an Official Reprimand because on February 24, 2020, Complainant did not report to her duty station and waited until 9:13 a.m. to contact management to request leave. On April 2, 2020, S3 and Complainant had a conversation following a staff meeting on employee expectations during telework. S3 alleged Complainant became agitated, raised her voice, and yelled over her when S3 attempted to address Complainant’s concerns. Complainant was charged AWOL on April 7, 2020, from 12:15 p.m. to 12:45 p.m. because she was absent without authorization from her designated duty station. On April 23, 2020, Complainant was issued a Proposal to Suspend for five days based on the April 7, 2020 AWOL charge and conduct unbecoming of a federal employee when she failed to be courteous and considerate when speaking with S3 on April 2, 2020. Complainant was issued a decision letter suspending her for five days. The decision letter explained that that the misconduct in this most recent incident was significantly similar to misconduct Complaint had been disciplined for on October 16, 2019, and March 3, 2020.3 Therefore, Complainant was aware of the proper procedures for requesting unanticipated leave and her responsibility to treat others with courtesy and consideration. Additionally, the letter stated Complainant had been on notice that future acts of misconduct could lead to more severe discipline. Regarding Complainant’s harassment claim, Complainant alleged she was assigned an unreasonable workload and that management inappropriately kept charging her AWOL. 2 The Agency dismissed two additional claims for untimely EEO counselor contact. Complainant raised no challenge regarding these matters and the Commission can find no basis to disturb the Agency’s dismissal decision. These claims, however, will be considered as background evidence in support of Complainant’s hostile work environment claim. 3 Complainant was reprimanded on October 16, 2019 for discourteous behavior towards a co- worker and reprimanded on March 3, 2020, due to her AWOL charges. 2021003499 3 Complainant averred this harassment was based on her sex because S3 wanted to promote young men and did not promote women. S3 denied this allegation, stating Complainant was assigned duties appropriate to her knowledge and abilities as a Claims Technical Expert. 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). In the decision, the Agency concluded that Complainant failed to prove that Agency management subjected her to discrimination or reprisal 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 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 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). Complainant must initially 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. Corp. 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 burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination on the alleged bases, the Commission finds that the Complainant failed to present evidence to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. As described above, Complainant knew of the Agency’s policy for time and attendance, and courteous behavior. 2021003499 4 Complainant had previously been counseled on these issues on two occasions for failing to call in by 8:45 a.m. and once when she left before the end of her tour of duty. Complainant had received a written reprimand for AWOL charges from additional violations of call-in procedures as well as a written reprimand for treating a coworker discourteously by loudly giving a coworker inaccurate information. The Decision to Suspend Complainant noted that these previous reprimands had been insufficient in changing Complainant’s behavior and that suspension was the next appropriate step in progressive discipline. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. Aside from Complainant’s conclusory allegations, Complainant has failed to offer any evidence that management’s actions were motivated by discriminatory or retaliatory animus. As Complainant chose not to 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. The Commission finds no persuasive evidence that Complainant's protected bases were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. Hostile Work Environment To establish a claim of harassment a 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 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). Therefore, to prove her harassment claim, Complainant must establish 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 her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 2021003499 5 Complainant asserted that based on her protected classes, management subjected her to a hostile work environment. Complainant alleged incidents of what she believed to be discriminatory and retaliatory harassment. The Commission finds that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Even assuming the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. The record reflects the alleged incidents were more likely the result of routine supervision and general workplace disputes and tribulations as discussed more fully above. Anti-discrimination statutes are not general civility codes designed to protect against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dep’t of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a Complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). Here, there is no evidence demonstrating that Agency officials were motivated by discriminatory or retaliatory animus. Accordingly, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION Therefore, after a careful review of the record, including arguments on appeal, and arguments and evidence not specifically discussed in this decision, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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). 2021003499 6 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. 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. 2021003499 7 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 September 12, 2022 Date