Werner A., Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

May 10, 2017

0120151096 (E.E.O.C. May. 10, 2017)

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

Werner A.,
Complainant,

v.

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

Appeal No. 0120151096

Agency No. DAL-13-0624-SSA

DECISION

The Commission accepts Complainant’s appeal from the January 9, 2015, final Agency decision
(FAD) concerning his 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. The Commission’s review is de novo. For the following
reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Case
Technician at the Agency’s Office of Disability Adjudication and Review in Dallas, Texas.
Complainant experiences complications from chronic insomnia and sleep apnea. Complainant
can perform the essential duties of his position without a reasonable accommodation and has not
requested an accommodation.

On May 1, 2013, Complainant’s supervisor (S1) began in the Group Supervisor position.
Complainant was absent on May 1 and 2, 2013, and did not contact management about his
attendance. S1 and Complainant’s former supervisor contacted Complainant to remind him that
he needed to contact management of his attendance status no later than 7:30 a.m. on the day of
his absence. Additionally, management requested that Complainant submit medical

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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documentation in support of his absence. On May 6, 2013, Complainant left a message for
management indicating that he would not be reporting to work, but did not request any type of
leave. On May 7, 2013, Complainant called S1 and informed him that he would not be in the
office for the rest of the week. Complainant submitted several pages of medical documentation.
Complainant reported for work on May 13 and 14, 2013, but left work early on both days.
Complainant was charged absent without leave (AWOL) for the remainder of his 10-hour shifts
on those days.

On May 13, 2013, S1 counseled Complainant about violating the Agency’s personally-
identifiable information disclosure policy by sending information about a benefits claimant to a
different individual with the same last name. S1 noted that Complainant should have been able
to verify the claimant’s identity with minimal effort. Additionally, S1 sent Complainant an email
stating that he had not presented adequate medical documentation in support of his absence from
April 29, 2013 through May 9, 2013. The documentation did not specify Complainant’s
diagnosis, prognosis, and anticipated duration of Complainant’s medical issues. On May 15,
2013, Complainant called S1 at 9:14 a.m. and stated that he was running late. Complainant told
S1 that he would “see me when he sees me.” Later that morning, S1 asked Complainant to come
to his office to discuss Complainant’s attendance that week. S1 informed Complainant that he
was required to call before 7:30 a.m. if he would be absent or tardy. Complainant became irate
over the discussion and the personally-identifiable information counseling.

On May 15, 2013, Complainant sent S1 an email stating that he considered S1’s treatment of him
harassment and bullying and that he intended to ask his second-level supervisor (S2) for a new
supervisor. On May 16, 2013, Complainant called S1 and stated that he would not be at work.
That same day, S2 informed Complainant that S1 was simply performing his duties as a
supervisor by making assignments and following up on them. Additionally, S2 reminded
Complainant of the collective bargaining agreement’s requirements when requesting leave. S2
further informed Complainant that she would not be reassigning him.

On May 20 to 23, 2013, Complainant called S1 outside of the required time to inform him that he
would not be at work. As a result, Complainant was charged with AWOL on those days.
Additionally, Complainant was charged with AWOL on May 27, 29, and 30, 2013. S1 again
requested medical documentation in support of Complainant’s absences.

On May 30, 2013, S1 met with Complainant, Complainant’s union representative, and a co-
worker who served as a witness. S1 discussed Complainant’s need to timely advise management
when he would not be reporting to work; his need to stay at work for the entirety of his shift and
to timely notify management to request leave if leaving before the end of his shift; and his lack
of productivity for the month. Complainant had been scheduled to work 18 days in May 2013,
but had reported for work five days and failed to work a full shift on any of those days.
Complainant was charged 148 hours of AWOL in May 2013.

In June 2013, Complainant continued to be irregular in attendance, and was charged with AWOL
on seven days. On June 12, 2013, S1 observed Complainant talking to a co-worker for an
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extended time and approached Complainant. Complainant claimed that he was talking to the co-
worker about work-related matters. S1 asked Complainant to return to his desk several times.
Complainant became angry, refused S1’s instructions, and responded in a raised voice that he
would return to his desk when he was finished with his conversation. On June 19, 2013, S1
issued Complainant a written reprimand for his disrespectful behavior.

In June 2013, Complainant accumulated 88.25 hours of AWOL. Complainant submitted medical
documentation regarding the absences; however, management determined that the
documentation did not adequately support the absences. On July 2, 2013, S1 issued Complainant
a memorandum regarding his unscheduled work absences. In the memorandum, S1 noted that
Complainant had not submitted leave requests for his May 2013 absences, and that the absences
were charged as AWOL as a result. S1 informed Complainant that if he submitted medical
documentation in support of his absences, the AWOL charged could be changed to leave without
pay (LWOP).

On September 11, 2013, Complainant left a voicemail message for S1 around 6:00 a.m. stating
that he was sick and requesting unpaid leave. On September 12, 2013, Complainant submitted a
leave request for the previous day requesting annual leave. S1 denied the request because
Complainant failed to request leave within the required timeframe in accordance with the
collective bargaining agreement. By the end September 2013, Complainant had accumulated
427.5 hours of AWOL for Fiscal Year 2013. In December 2013, Complainant submitted
acceptable medical documentation and some of the accumulated AWOL was converted to
LWOP.

On October 31, 2013, S1 met with Complainant to discuss work performance issues.
Complainant became highly agitated during the meeting, raised his voice, refused to remain
seated, and walked out before the meeting was completed. S1 reported the incident to S2, who
believed that both parties acted unprofessionally. However, numerous employees expressed
concerns for their safety following the incident. Based on the written statements of several
employees, S2 decided to request additional security for the week of November 4, 2013. S2 did
not announce the reason for the additional security personnel to the staff. S1 resigned as a
supervisor on November 5, 2013, as he disagreed with how S2 handled the situation.

Around October 30, 2013, a contractor for a copying service came to the office to copy files.
The contractor had problems with the copier and asked to speak with a manager. By the time S2
arrived to speak with the contractor, the contractor was on the phone with his supervisor. The
contractor handed S2 his phone to talk with his supervisor. S2 was not familiar with the
company and asked if the company had the proper authorization to copy the files. The
supervisor spoke to S2 angrily and told S2 that she had never had to complete a form in the past
to copy files. The supervisor then accused S2 of being a racial profiler and said that she had seen
S2 walking around the office profiling people. S2 then gave the supervisor her direct phone
number to speak with her privately. S2 learned later that Complainant and his wife owned the
copying service and that she had been speaking with Complainant’s wife. S2 performed an
internet search and found that Complainant was listed as the owner of the copying service.
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On November 21, 2013, S2 met with Complainant and his union representative to discuss the
incident with S1 in October 2013. Additionally, at the conclusion of the meeting, S2 asked
Complainant whether he owned the copying service. Complainant responded that he was no
longer the owner of the copying service and had not worked there for years. S2 informed
Complainant that he needed to complete the outside activities form as it appeared to be a conflict
of interest.

On September 16, 2013 (and amended on January 16, 2014), Complainant filed a formal
complaint alleging that the Agency discriminated against him on the bases of race (African-
American), disability, and in reprisal for prior protected EEO activity as evidenced by multiple
incidents including, inter alia, management has repeatedly denied Complainant's requests for
Leave Without Pay (LWOP) even though he provided medical information in support of these
requests; management placed him under excessive surveillance at work; management has called
him multiple times while he was on leave due to illness; he was issued a letter of reprimand; his
annual leave request was denied; management had a meeting with him without his union
representative, stated he had a bad attitude, and yelled at him when as he attempted to leave; his
manager had extra security while at the office, stating that he was scared for his life due to the
meeting with Complainant; and management performed an internet search on him and accused
him of owning a company that performs work for the Agency.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not
respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was no
evidence that the conduct at issue was based on discriminatory or retaliatory animus. More
specifically, S1 called Complainant while he was home sick because Complainant had not timely
called in or reported to work for several days. S1 was then Complainant’s new supervisor and
simply wished to learn of Complainant’s leave status and the date of his return to work.
Complainant alleged that he was consistently disciplined by S1 for failing to call in to work in a
timely manner; for failing to provide medical documentation; and for leaving work without
notifying him. S1 was instructed to place Complainant in AWOL status whenever he engaged in
such conduct in accordance with the collective bargaining agreement. As to his September 11,
2013 leave request, S1 denied it because Complainant failed to follow proper leave request
procedures.

With respect to Complainant’s claim that he was placed under excessive surveillance, S1 stated
that he walked around and monitored all employees as part of his management strategy. S1
added that Complainant’s desk was immediately outside of his office and the circular structure of
the office required that he walk past Complainant’s desk.
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Regarding the June 16, 2013 reprimand, Complainant was involved in a conversation with a co-
worker away from his desk on June 12, 2013. S1 approached him and, after several inquiries,
instructed Complainant to return to his desk and to his work. Complainant loudly objected to
S1’s request to end the conversation. On June 16, 2013, S1 issued Complainant a reprimand for
his disrespectful conduct during the incident.

With regard to the November 1, 2013 meeting and extra security measures, Complainant and S1
had a contentious meeting. When apprised of the matter, S2 felt that both S1 and Complainant
acted unprofessionally. Several employees reported feeling unsafe following Complainant’s
disruptive behavior during the meeting, and she decided to request an extra security guard for a
period of time. S2 stated that the purpose of the security guard was to walk any employee to
their cars who requested it, to protect employees, and to secure the office space. The Agency
noted that the record showed that numerous employees expressed that they felt uncomfortable
and fearful of Complainant following the altercation. Thus, S2 was motivated to get the extra
security guard based on her concern for her employees.

Finally, S2 conducted an internet search after she discovered that Complainant’s wife operated a
copying service that was doing business with the office. S2 conducted the search to determine
Complainant’s financial interest in the company and whether there was a possible conflict of
interest.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to discrimination, reprisal, or a hostile work environment as alleged. Complainant filed the
instant appeal, but failed to submit a timely brief in support.2

2 Commission regulation 29 C.F.R. § 1614.403(d) provides that any statement or brief filed on
behalf of a complainant in support of the appeal must be submitted to the Commission within 30
days of filing the notice of appeal. The record reflects that Complainant filed his notice of
appeal on February 4, 2015, and was granted an extension until April 6, 2015 to file any
statement or brief in support. Complainant did not file his supporting brief until May 5, 2015.
Consequently, the Commission declines to consider the May 5, 2015 supporting brief, as it was
filed beyond the granted extended briefing period.
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ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily
protected class; (2) he 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 his
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 his harassment claim, Complainant must establish that he 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 his protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

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. Here, Complainant
asserted that based on his protected classes, he was subjected to a hostile work environment
based on several incidents where Agency officials took actions that seemed adverse or disruptive
to him. The Commission concludes that the conduct alleged was insufficiently severe or
pervasive to establish a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory or retaliatory
animus played a role in any of the Agency's actions. The record reflects that the alleged
incidents were more likely the result of routine supervision, managerial discipline, and general
workplace disputes and tribulations. For example, Complainant’s leave requests were charged as
AWOL because he failed to follow the Agency’s leave request procedures and failed to provide
adequate medical documentation in support of his absences. ROI, Ex. 8, at 3-5.; ROI, Ex. 9, at 3.
Complainant later submitted acceptable documentation, and most of the AWOL charged were
changed to LWOP. ROI, Ex. 9, at 3. S1 stated that he only called Complainant or left voice
mails for him because Complainant was frequently absent after he became Complainant’s
supervisor and he did not have documentation to support Complainant’s absences. ROI, Ex. 8, at
6. S1 denied placing Complainant under excessive surveillance and explained that his
management style was to walk around to be more available. Id. S1 noted that the office layout
required that he walk past Complainant’s cubicle no matter which path he took. Id.
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With respect to the June 16, 2013, reprimand, S1 affirmed that he issued it after Complainant
disrespectfully responded to his instructions to return to his desk. ROI, Ex. 8, at 6-7. As to the
September 11, 2013, leave request denial, S1 confirmed that he denied it after Complainant again
failed to follow the proper leave request procedures. Id. at 7. Regarding the meeting and extra
security in the office matters, S2 stated that Complainant and S1 had a contentious meeting, and
several employees reported that they were fearful of Complainant following the incident. ROI,
Ex. 9, at 2-3. Based on their statements, S2 requested additional security to ensure the safety of
the office. Id. at 3. Finally, S2 confirmed that she performed an internet search regarding
Complainant after she discovered that he and/or his wife owned a printing service that performed
services for the Agency. Id. at 4-7. S2 explained that she performed the search to determine
whether there was a conflict of interest. Id. at 7.

Finally, to the extent that Complainant claims that he was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence showing that the Agency's
articulated reasons were a pretext for discrimination or reprisal. As a result, the Commission
finds that Complainant was not subjected to discrimination, reprisal, or a hostile work
environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, 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 (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,
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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.

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

May 10, 2017
Date