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

Equal Employment Opportunity Commission

Aug 4, 2022

Appeal No. 2021002048 (E.E.O.C. Aug. 4, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rita M.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021002048 Agency No. PHI-19-1009-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 July 13, 2020 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. 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 Module Manager, GS-0105-13, at the Agency’s Mid-Atlantic Program Service Center, Process Area 1, Process Module 3, in Philadelphia, Pennsylvania. Her first-level supervisor (S1) was the Deputy Director, her second-level supervisor (S2) was the Operations Manager, and her third-level supervisor (S3) was the Deputy Assistant Regional Commissioner. On September 24, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of race (Caucasian), sex (female), 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. 2021002048 2 1. On July 23, 2019, she became aware that she was not highly recommended for the Disability Processing Branch Manager position advertised under Vacancy Announcement Number No. SA-10513251-19-197; and 2. She was subjected to harassment between February 2018 and the present in terms of work conditions, a threat, and non-selections. Complainant had applied for the Disability Processing Branch Manager position advertised under Vacancy Announcement Number SA-10513251-19-197 on June 12, 2019. Complainant made the Best Qualified List and her application materials were forwarded to the Assistant Regional Commissioner (ARC), who was the Selecting Official. ARC reviewed the referred candidates’ application materials, and determined which candidates were rated “Highly Recommended” by the supervisors on the recommendation forms. Only candidates that were “Highly Recommended” were selected for an interview. Complainant was told she would not be interviewed based on the supervisory recommendation she received. Complainant alleged S2 did not properly apply the Merit Promotion Plan guidelines when she made negative comments about Complainant to S3. She also alleged S3 was aware of Complainant’s superior qualifications. Complainant believed that the applicant selected for the position (Selectee) had limited work experience in operational, administrative, and medical terminology activities associated with the subject position. Complainant stated she had superior qualifications to Selectee because she had prior work experience with the Disability Processing Branch’s operational, administrative and medical terminology; extensive knowledge of their operations; and superior interpersonal skills and motivation. When S2 first became Complainant’s supervisor in February 2018, she had a meeting with Appellant about a possible lateral reassignment because the position was vacant, and Appellant had previously held the role. Complainant did not like this suggestion, and later met with ARC and S2 to discuss the issue. Complainant and S2 agreed to disagree and remain professional. Thereafter, Complainant believed that her managerial accomplishments in Module 3 were unappreciated, and she alleged a number of incidents where she claimed S2 slighted her managerial abilities or judgment, which included among other things: • In May 2018, S2 used a “condescending” tone in questioning what Module 3 had done to receive kudos; • In June 2018, Complainant was selected to attend training to be a Harassment Prevention Officer and S2 emphasized that she needed to continue to pay attention to her normal managerial duties; • Between May and July 2019, two incidents where S2 threatened to “write up” Complainant if she did not address workloads or subordinate employee discipline; • In a meeting with other managers discussing color schemes for employee appreciation week and Complainant alleged S2 said “Black is beautiful;” • S2 told Complainant to punish her subordinate employees as if they were her children; 2021002048 3 • On September 10, 2019, Complainant attended a senior management meeting where the Assistant Regional Manager stated to another attendee, “You are the new sheriff in town, throw some water in their faces.” She said the comment was made in reference to the Disability Processing Branch employee’s possible unwillingness to reassign their seats. Complainant felt very uncomfortable, threatened and harassed; and • On November 5, 2019, she attended a senior management meeting and S3 asked her to recite the Agency’s motto in front of the 16 managers. S2 explained she routinely issued statements about customer service, and customer service representative coverage, documenting job performance amongst other things. S2 also said Complainant had at least two problem employees she should have referred to labor relations specialists for follow-up action. S2 said she routinely advises module managers about the guidelines and process for those referrals, such as managers must document the issues before referral. S2 denied directing Complainant to write up an employee or that S2 would write up Complainant. S2 denied most of Complainant’s allegations, including talking in a condescending manner, making a negative comment about Complainant’s Harassment Prevention Officer training, threatening to write up Complainant, and saying “Black is beautiful.” The Assistant Regional Manager denied telling an employee “You are the new sheriff in town, throw some water in their faces.” Regarding Complainant being asked to recite the Agency’s motto, S3 explained module managers rotationally attend senior staff meetings. S3 often requests new attendees to recite the motto to have the management team execute their duties in line with the motto, and that Complainant was treated the same as other new attendees at a senior staff meeting. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) 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 (FAD) pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency found that Complainant failed to establish that management’s articulated legitimate, nondiscriminatory reasons for its actions were pretext for discrimination. In particular, S2 said she responded to the reference check requested for the Disability Processing Branch Manager position and provided an accurate assessment of Complainant’s leadership skills, job knowledge, and ability to get along with others. S2 “Recommended” Complainant for the position but did not “Highly Recommend” her based on direct observations and recurring reports relating to Complainant’s job performance. S1 (who also provided a recommendation) said Complainant had strong communications skills and professionalism when interacting with employees and managers but needed improvement in managing and prioritizing workloads and meeting pre-established due dates. S3 only interviewed applicants that received a “Highly Recommended” rating, therefore S3 did not interview Complainant. 2021002048 4 Finally, the Agency found that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the Agency determined that there was no evidence that the conduct at issue was based on discriminatory or retaliatory animus. As a result, the Agency found that Complainant was not subjected to discrimination or reprisal as alleged. The instant appeal followed. 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 Complainant established a prima facie case of discrimination on the alleged bases, the Commission finds Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. Specifically, as discussed above, Complainant was not referred for an interview for the manager position in Claim 1 because she did not receive a rating of Highly Recommended. On the recommendation form, S2 noted Complainant needed to improve in taking disciplinary action after unsuccessfully correcting issues through oral counseling and that she tended to shy away from crucial conversations. ROI at 105. S2 acknowledged that Complainant was honest, pleasant, and an asset to the agency, but did not think that her ability to handle the high leadership role and demands of the position warranted a Highly Recommended recommendation. Id. 2021002048 5 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. The Commission finds no persuasive evidence that Complainant's protected classes 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 discriminatory animus. 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. 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. In this case, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations as more fully detailed above. 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. 2021002048 6 The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. The Commission finds Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 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 order, because a preponderance of the record evidence 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). 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. 2021002048 7 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. 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 August 4, 2022 Date