Shena O.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 29, 2017

0120150403 (E.E.O.C. Mar. 29, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Shena O.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120150403

Agency No. ATL-13-0345-SSA

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated September 29,
2014, finding no discrimination with regard to her 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we AFFIRM the
Agency’s final decision finding no discrimination.

BACKGROUND

The record indicates that Complainant filed her complaint on June 3, 2013, alleging
discrimination based on disability, race (Black), and in reprisal for prior EEO activity when:

a. On February 21, 2013, management asked her for a signature on her service
observation records, causing her to suffer elevated blood pressure;

b. On February 20, 2013, she received the results of two service observations which
misidentified certain of her actions as erroneous; none of her coworkers’ service
observations identified errors;

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.
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c. In February, 2013, management attempted to give the results of two service
observations to her on several occasions, which caused her stress;

d. In February, 2013, she contacted the Deputy TSC (Teleservice Center) Director to
address concerns about management listening in on calls; the Deputy TSC Director sent
a manager to her desk to discuss the issue, even though the reason that she contacted
the Deputy TSC Director was to avoid contact with the manager;

e. On January 25, 2013, management engaged her in a discussion about her union duties
after attempting to prevent her from calling a union representative for a meeting;

f. On January 15, 2013, she attempted to arrange for a coworker to visit the union office,
prompting a manager to yell at her, which caused her blood pressure to rise enough that
she needed to be kept overnight at the hospital;

g. After January 15, 2013, a Unit Manager began performing her service observations in
retaliation for the January 15, 2013 incident;

h. In January, 2013, she was denied leave under the Family Medical Leave Act (FMLA);
and

i. In October, 2012, management conducted a service observation and criticized her for
speaking too quietly on the phone, even though she cannot speak loudly due to her
medical condition.

After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing. The Agency issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to
rebut.

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima
facie case of discrimination, we find that the Agency has articulated legitimate,
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nondiscriminatory reasons for the alleged incidents. During the relevant time period at issue,
Complainant was employed as a Teleservice Representative (TSR), GS-8, at the Agency’s
Mega TSC in Birmingham, Alabama. She indicated that: she had her hip replaced, throat
surgery, high blood pressure, and post-traumatic stress syndrome; and although she could not
speak on the phone as loudly as other employees due to her thyroid surgery, her medical
conditions did not affect her ability to perform her TSR duties. Henceforth, we will address
Complainant’s claims in chronological order.

With regard to claim i, Complainant’s first level supervisor (S1) indicated that S1 told
Complainant that her voice was really low on the phone because the caller could not hear her.
S1 stated that Complainant said nothing about her being unable to talk louder or speak clearly
due to any medical condition.

With regard to claim h, Complainant claimed that during the relevant time period at issue, she
requested leave under the FMLA and her second level supervisor (S2) asked for medical
documentation she already submitted. Complainant acknowledged that S2 ultimately approved
her leave. S2 indicated that: Complainant’s original documentation did not support the days
she requested; she then brought in more documentation later which still did not support her
request; and after talking with her, S2 decided to accept the submitted documentation and
authorized her FMLA at issue.

With regard to claim f, on the date of the incident, Complainant’s coworker’s unit manager
(UM1) denied yelling at Complainant. UM1 indicated that on that day, UM1 told the
coworker that she could see her union representative the next day because she was needed in
the office to cover staff shortage on that particular day. UM1 stated that Complainant, who
was the coworker’s union representative, later came over to the coworker’s workstation while
UM1 was away from UM1’s desk and asked the coworker’s other supervisors if the coworker
could go to the union office. UM1 stated that UM1 did ultimately approve the coworker to go
to the union office with Complainant on that day. UM1 indicated that UM1 had no idea UM1
had upset Complainant who went to a hospital due to her high blood pressure.

With regard to claim g, S2 and S1 indicated that under Agency policy, cross-service
observations were performed in the month of February at issue and UM1 was assigned by S2
to listen to Complainant in Unit 24 during that month. UM1 denied Complainant’s claim of
retaliation and stated that S2 assigned her to observe Complainant at the relevant time period at
issue.

With regard to claim e, S2 denied Complainant was prevented from bringing her union
representative to a meeting. Specifically, S2 stated that: Complainant did bring her union
representative during the meeting at issue; S2 wanted to hear Complainant’s side of story
concerning the incident described in claim f; S2 explained to her why her actions on that
particular incident was inappropriate; and S2 asked her to come to see S2 if UM1 was not
available as S2 was UM1’s supervisor.

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With regard to claim d, the Deputy TSC Director denied that Complainant contacted him about
management listening in on calls or his sending UM1 to her desk as she alleged. The Deputy
TSC Director indicated that he did not assign managers to do service observations for TSRs.
UM1 stated that the Deputy TSC Director did not send her to Complainant about the service
observation or any other reason during the relevant time period.

With regard to claim c, UM1 denied that UM1 went to Complainant on several occasions as
she alleged. Specifically, UM1 indicated that during the relevant time period at issue, UM1
attempted to give Complainant the service observations form for her merely to acknowledge
her receipt of the form but Complainant held up a paper stating that she needed to see her
union representative and UM1 did not make another attempt and instead gave it to S1.

With regard to claim b, S2 indicated that service observations of TSRs were part of the day-to-
day activity for the managers and supervisors. S2 was not aware of the incidents at issue. S1
indicated that Complainant did receive two service observations and one of the two noted a
service error that the TSR did not follow the instructions on the Customer Care Information
Program. UM1 indicated that UM1 issued Complainant only one error on the service
observation UM1 performed on her.

With regard to claim a, S2 indicated that service observations were the random method used to
listen to TSRs on their calls to make sure they give complete and accurate information to the
public and were an everyday occurrence in the TSC. S2 and S1 stated that they were not
aware Complainant suffered an elevated blood pressure because of the incident at issue.

After a review of the record, we find that Complainant failed to show that there were any
similarly situated employees not in her protected groups who were treated differently under
similar circumstances. With regard to her harassment claim, we find that Complainant failed
to establish the severity of the conduct in question or that it was related to any protected basis
of discrimination. It appears that all TSRs, including Complainant, were monitored by
supervisors about their service calls and it was not unusual that mistakes were found.
Assuming (without deciding) that Complainant was an individual with a disability, she does not
claim that she was denied a reasonable accommodation or required to perform her duties
beyond her medical restrictions. Based on the foregoing, we find that Complainant failed to
show that the Agency’s actions were motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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.

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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

March 29, 2017
Date