Ross H.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 20, 2020

2019005107 (E.E.O.C. Aug. 20, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ross H.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019005107 Hearing No. 471-2015-00124X Agency No. CHI-014-0511SSA DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 28, 2019 final order concerning an equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. During the period at issue, Complainant was employed as a Tele-Service Representative at the Agency’s Detroit, Michigan Tele-Service Center. On July 30, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him based on national origin, sex, and disability when: 1. On May 30, 2014, management instructed Complainant to submit a leave slip for being late and he was denied four hours of leave; 2. On May 31, 2014, management filled out another leave request for the hours of leave that was denied on May 30, 2013, and without Complainant’s signature, placed the leave slip in his file; 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. 2019005107 2 3. On May 30, 2014, management advised Complainant that his work performance was poor but did not provide him with any specific details; 4. On May 23, 2014, management advised Complainant that he could not drink water unless he was on break or on union time; 5. On April 21, 2014, Complainant felt he was bullied and intimidated by management when management approached him in his cubicle and stood over his shoulder looking down on him; 6. On April 16, 2014, management questioned why Complainant was away from his desk and required him to submit a leave slip for his absence; 7. On April 19 and 28, 2014 and November 12, 2014, Complainant’s requests for administrative time to file an EEO complaint were denied; 8. On July 29, 2014, Complainant’s supervisor humiliated and bullied him about starting work, asked him “What did you come here to do?” and “Why is it taking you so long to take calls?,” and yelled in the presence of coworkers “Then do your job!;” 9. On August 22, 2014, Complainant was denied administrative leave after calling in due to flooding in the area; 10. On April 28, 2014 through November 6, 2014, Complainant’s requests for a reasonable accommodation were denied; 11. On June 3, 2014, Complainant’s leave was amended without explanation; 12. On May 29, 2014, management bullied Complainant when management approved his leave and then amended his request; 13. On August 12, 2014, Complainant was denied administrative leave when a storm hit the Detroit area without explanation; 14. On August 26, 2014, Complainant’s request for Work at Home by Exception was withheld from the Director until October 20, 2014; 15. On November 12, 2014, Complainant’s management handed him sensitive material while he was on the telephone and did not discuss his medical problems in private; 16. On March 28 and 31, 2014, April 3 and 8, 2014, and as of November 12, 2014, Complainant has been charged 38 hours of Absence Without Leave (AWOL); 17. On October 14-17, 21, 28 and 30-31, 2014, November 3, 5-6, 10, 13-14, and 21, 2014, December 15-19, 22, 24, and 29-30, 2014, January 6, 12-15, 20-21, 2015, and ongoing, Complainant was denied Family and Medical Leave Act (FMLA), administrative leave, and advance sick leave; 18. on August 28, 2014 and November 6, 2014, Complainant looked at his personal folders and noticed the reasonable accommodation requests were incorrect. Complainant’s management incorrectly processed his requests. Both requests in Complainant’s folder did not contain the proper disposition notices, denial notices or had management signatures on the documents. Not all the material regarding his requests were in Complainant’s folders; 19. on December 24, 2014, Complainant’s supervisor was upset with him because he was one of the last employees to leave for the day;2 2 This date was inadvertently identified as “December 4, 2014.” However, as the claim in this incident relates to Complainant’s actions on Christmas Eve, a fair reading of the record reflects that the date at issue was instead “December 24, 2014.” 2019005107 3 20. on January 6, 2015, when Complainant let the Office Supervisor (OS) know he would have to put callers on hold because he was ill, the OS did not respond and walked away; and 21. on January 22, 2015, Complainant was looking in his folders mentioned in incident 18 and discovered five documents that were not previously in the folder are in there now. Complainant alleges it took seven months to place the information in the folder. Complainant alleges that management ignored, altered, and changed the information regarding the requests.3 After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. However, the AJ subsequently issued a decision by summary judgment in favor of the Agency. In his decision, the AJ stated that the evidence showed that management’s conduct was not objectively so severe or pervasive as to create an unlawfully hostile work environment. The AJ noted that in regard to claims 1-2, 6-7, 9-14, and 16-17 relating to denial of leave, compensatory time, administrative leave, advanced sick leave, Work at Home by Exception, FMLA, reasonable accommodation, and being charged with AWOL which were discrete acts and “that there was no evidence of abusive conduct in any of these incidents.” Regarding claim 8, the Operations Supervisor explained that Complainant’s reasonable accommodation request was denied because he did not meet the qualifications based on the decision received from the SSA medical office. With respect to claims 3 and 5, the AJ noted that management placed Complainant on notice that his performance was lacking, and asked him why it took him 1-2 hours to take a call. Regarding claims 4-5, 15, and 18-21 the AJ determined that these incidents did not support Complainant’s harassment claim. For instance, the AJ noted that in regard to claim 4, Complainant did not identify anyone outside his protected groups that could drink water when it was not their break or lunch time. Regarding claim 8, the AJ noted that Complainant claimed his supervisor yelled at him and questioned his rudely questioned his work ethic which “involved routine supervision of an employee by a supervisor.” The AJ also noted that in regard to claim 19, the evidence in the record indicated that Complainant did not come in early on Christmas Eve, so that his supervisor and coworkers could leave early. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Complainant did not submit a brief on appeal. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 3 The record reflects that claims 18-21 were later amended to the instant formal complaint. 2019005107 4 In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 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. 2019005107 5 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. 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 20, 2020 Date