Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120131095 Agency No. ATL-11-0349-SSA DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's December 12, 2012 final decision 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. BACKGROUND During the period at issue, Complainant worked as a Claims Authorizer at the Agency's Immediate Claims Taking Branch, Southeastern Program Service Center in Birmingham, Alabama. On March 29, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her in reprisal for prior EEO activity when: 1. She was subjected to harassment and a hostile work environment when on February 8, 9 and 11, 2011, management denied her request for union official time, EEO official time, and personal leave in lieu of office time. 2. On February 7, 2011, management assigned her to a former mentor1 against whom she filed a previous complaint, for harassment and disparate treatment. The mention of assigning her to the former mentor again affected Complainant so badly that she had to see the in-place nurse and then had to see her doctor because her blood pressure had elevated so high. Subsequently, on February 9, 2011, management reassigned Complainant to another mentor to whom she requested not to be assigned, because of an extreme language barrier. After the investigation of the instant formal complaint, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant requested a hearing. By an Order entitled "Order of Remand for Final Agency Decision," the AJ cancelled the hearing request. The AJ found that Complainant failed to respond to the Agency's Production Requests and interrogatories. The AJ remanded the formal complaint to the Agency, and the Agency issued the instant final decision, pursuant to 29 C.F.R. 1614.110(b), on December 12, 2012. In its final decision, the Agency found that Complainant did not establish a prima facie case of reprisal discrimination. The Agency further found that assuming for the sake of argument only, Complainant established a prima facie case of reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext. The Agency further concluded that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Module Manager stated that during the relevant time, she was Complainant's second line supervisor. The supervisor stated that in regard to claim 1, she denied Complainant's requests for official time on February 8, 9 and 11, 2011 because there was a conflict with work plans. The supervisor stated that Complainant was asked to reschedule the official time for another day. The supervisor stated, however, that while she initially denied Complainant's annual leave request for February 8 and 9, 2011, she later approved Complainant's request for annual leave in lieu of sick leave for February 8, 2011. Further, the supervisor stated that Complainant requested EEO official time for February 11, 2011. The supervisor asked Complainant to reschedule, and later granted Complainant the EEO official time for February 17, 2011 (2 hours) and February 18, 2011 (11/4 hours). Specifically, the supervisor stated "Complainant's reason for requesting EEO official time was for 'amendments.' I should explain that there is a difference between official time and EEO official time. Official time is to go to the union to take care of any labor management issue one might have. EEO official time is to actually file an EEO complaint or work on a pending EEO complaint." Complainant asserted that the Agency management's denial of her official time request for February 11, 2011 on the grounds that she had a telephone commitment with her mentor was a "cover up." However, the supervisor stated that Complainant's assertion was false. Specifically, the supervisor stated that Complainant requested official time from 10:00 a.m. to 12:00 p.m. and "she was already scheduled for telephone time with her mentor from 10:00 AM to 12:00 PM and from 2:00 PM to 4:00 PM on that day. It is true all claims authorizers are scheduled four hours of telephone commitment each day. They all do the same job. No other claim authorizer requested personal leave, official time, and/or EEO official that conflicted with their scheduled telephone commitment." Complainant asserted further that other employees were treated more favorably regarding requests for official time and personal leave while her requests were denied. The supervisor denied this assertion. Specifically, the supervisor stated "this is a false allegation. Others were not treated more favorably. No one else requested official time, EEO official time, or personal leave in lieu of official time on those dates, or at any other time since I became the Unit A supervisor. I can only speak for Unit A." The Operations Manager stated that during the relevant period, he was Complainant's third line supervisor. The Manager stated that on several occasions, Complainant was asked to reschedule her official time usage "because of necessary work. I do not believe official time was denied. It is a management right to determine when official time may be used." Regarding the denial of the official time for February 11, the Manager stated "I remember that I agreed that [Complainant] should not be granted time or leave to avoid her telephone interviews. I certainly agree that the manager was reasonable in asking the employee to reschedule her EEO or official time the next week." Regarding claim 2, the supervisor stated that during the relevant period, she was not aware of Complainant's previous harassment claim against the person originally assigned as her backup mentor. The supervisor stated that the Senior Claims Processing Specialist (SCPS) mentor was assigned by the Operations Manager and the Deputy Operations Manager because they are responsible for SCPS assignments. The supervisor stated at that time, Complainant's regularly assigned mentor "was on vacation around February 7-9, 2011, and [a named mentor] was assigned as a backup mentor for those days." The supervisor stated that after Complainant informed her that she could not work with the backup mentor, she contacted the Division Office managers to discuss the possibility of changing mentors. Further, the supervisor stated after consulting with the Division office managers "we honored the complainant's request to use another available SCPS mentor. The new SCPS backup mentor was [a named mentor]." Complainant asserted that the new backup mentor had an extreme language barrier. However, the supervisor disagreed. The supervisor stated that "even if there was a language barrier, it was not a factor because he would not be doing much talking, if any. As a mentor, his duty is to listen to her telephone conversations; listen to her interview the beneficiary." The Manager stated "the SCPS position from which we obtain mentors in an Opportunity Perform Successfully (OPS) is under the immediate supervision of the Division Office managers, and as such , ... assignment of work is provided by the division office, which could be me or the deputy OM. The complainant complained about the mentor at some point and we changed the mentor. However, I did not agree with nor find any credibility in the complainant's objections to her mentor...also, no employee may choose the mentor that reviews the employee's work. The second temporary mentor had worked with [Complainant] previously and while the SCPS/mentor has an accent, there is obviously no extreme language barrier." Moreover, the Manager stated that Complainant "asked to be changed from every mentor she ever had. Neither the complainant nor any other employee is allowed by policy, past practice, and regulation to choose their mentor. The complainant's assessment of others' performance, which is merely a convenient allegation, is ill-informed, inexperienced, beyond her scope and training, and immaterial." Based on our independent review of the evidence and careful consideration of Complainant's arguments on appeal, we find that the responsible Agency official articulated legitimate, nondiscriminatory reasons for the disputed actions, which Complainant failed to prove, by a preponderance of the evidence, were pretext designed to mask retaliatory animus as a motivating factor. Beyond her bare assertions, Complainant has produced no evidence of disparate treatment or other evidence indicating unlawful retaliation occurred. Alleged Denial of Official Time to Pursue EEO Complaint Complainant alleged that she was denied official time on February 11, 2011, to work on amendments to a pending EEO complaint. Management asked her to take the time on another day. Complainant does not dispute management's assertion that in lieu of the time she wanted to take on February 11, she was granted official time to work on her EEO complaint on February 17, 2011 (2 hours) and February 18, 2011 (11/4 hours). Commission regulations entitle an employee to a reasonable amount of official time to prepare the complaint or respond to Agency requests for information. 29 C.F.R. § 1614.605(b). Reasonable is defined as whatever is appropriate under the particular circumstances of the complaint. Management Directive 110, Chapter 6, Section VIII(C)(1) (November 9, 1999). Allegations pertaining to the denial of official time state a separate claim apart from a statutory violation. See Edwards v. United States Postal Service, EEOC Request No. 05960179 (Dec. 23, 1996). To prevail on such a claim, however. Complainant would have to show why the amount of time he asked for was necessary. See Complainant v. United States Postal Service, EEOC Appeal No. 0120123527 (January 31, 2013). In this case, Complainant has not produced evidence that the official time needed to work on her EEO complaint had to occur on February 11, and it was not reasonable to ask her to take the time on February 17 and 18 instead. Therefore, we find no persuasive evidence that Complainant was improperly denied official time to pursue his EEO complaint. CONCLUSION After a review of the record in its entirety, including consideration of all statements 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 unlawful retaliation occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations April 21, 2015 __________________ Date 1 It appears in the record that a mentor is assigned to each employee in Complainant's position to periodically monitor telephone calls with claimants in order to provide input to improve customer service. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120131095 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120131095