EEOC Appeal 2019005606

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jon H.,1
Complainant,
v.
Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 2019005606
Agency No. NY-18-0022-SSA
DECISION
On August 13, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s August 1, 2019 final decision 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.
BACKGROUND
During the period at issue, Complainant worked as a Claims Technical Expert at the Agency’s
Jamaica, New York District Office.
On October 5, 2017, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him based on race (Caucasian), religion (Jewish), and in reprisal
for prior protected EEO activity (whistleblowing activity)2 when:
1. on approximately August 22, 2017, management subjected him to a Weingarten (pre-
disciplinary) meeting; and
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.
2 The Agency properly determined that whistle blowing activity was outside of the jurisdiction of
the 29 C.F.R. Part 1614 EEO complaint process.

2019005606	2
2. from August 22, 2017 to present, he was subjected to harassment in terms of working
conditions.
The Agency initially accepted the complaint and conducted an investigation. In its final decision,
the Agency initially dismissed claims 1 and 2 for failure to state a claim pursuant to 29 C.F.R. §
1614.107(a)(1). However, the Agency nonetheless proceeded to address claims 1 and 2 on the
merits, finding no discrimination. The instant appeal followed.
ANALYSIS AND FINDINGS
To establish a claim of discriminatory hostile environment harassment, 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 classes; (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 Agency. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
In other words, to prove his harassment claims, 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 a protected basis – in this case, his race, religion or prior EEO
activity. Only if Complainant establishes both of those elements – hostility and motive – will the
question of Agency liability present itself.
Regarding claim 1, Complainant asserted that approximately on August 22, 2017, management
subjected him to a Weingarten meeting.
The record reflects that in August 2017, Complainant transferred from the Agency’s Rego Park
Field Office to the Jamaica Field Office. Upon his transfer, Complainant mailed several boxes
containing Personally Identifiable Information (PII) of both claimants and himself to his new
office. After only four of the six boxes that Complainant mailed arrived, he reported the two
missing boxes to management. As a result, Agency management conducted an investigative
interview, referred to as a Weingarten interview of Complainant on April 21, 2017, to determine
whether Complainant followed Agency policy when mailing the PII. Complainant asserted that
the Weingarten interview was held in retaliation for having reported alleged non-compliance with
agency policy by his first-line supervisor in 2014 and 2017.
The District Manager (Manager) (Latino, Catholic) stated that during the relevant period, he was
Complainant’s third-line supervisor.

2019005606	3
He acknowledged that an investigative interview was held with Complainant concerning the
proper policy and management notification of shipping or mailing PII information. The record
reflects that the missing packages were subsequently recovered.
Regarding claim 2, Complainant alleged that from August 22, 2017 to present, he was subjected
to harassment in terms of working conditions.
The Manager noted that Complainant claimed that he was subjected to harassment when on
September 6, 2017, he went to the Area Director and reported that the Operations Supervisor was
instructing security to allow only 10 individuals at a time into the office to help the office meet
their time goals. The Manager explained, however, that there are several different departments in
the facility, and there is one entrance for the public to visit three different offices. He noted that
the Queens Card Center and the Office of Disability Adjudication Review is located on the second
floor while the Jamaica District Office is on the third floor. The Manager stated that approximately
900-1000 individuals visit these three offices daily and “they all have to go through magnetometers
before using an elevator to access the second or third floor. Normally about, 5-7 people get off
the elevator at the same time. The only time people are held downstairs by the Federal Police is
when the waiting rooms are overcrowded and for a fire safety reason.”
The Manager acknowledged that the Operations Supervisor issued Complainant a written
reprimand dated September 12, 2017, due to his respectful conduct toward her on September 6,
2017. The record contains a copy of the September 12, 2017 reprimand in which the Operations
Supervisor stated that on September 6, 2017, she met with Complainant to discuss the time that he
signed out the previous day and reminded him that the WebTA, the Agency’s web-based time and
attendance indicated that he signed out “for the workday at 6:30 p.m. However, you entered your
sign-out at 6:24 p.m., six minutes earlier than your actual sign-out time, and then left the office. I
reminded you that you could not leave the worksite before the end of your tour.”
Further, the Operations Supervisor stated that later that day, she informed Complainant that he
may enter his sign-out time on WebTA five minutes before the end of your workday and “while I
was trying to clarify the policy with you, you interrupted me and asked me in a loud tone of voice.
‘what are you getting at.’ You returned to my cubicle a short time later and asked me again, ‘what
are you getting at.’ You became upset and loudly accused me of trying to get you on something.
You said that everyone is stealing time, and said, ‘I will be watching everyone in this office,
especially, when people are speaking Spanish.’” Subsequently, the Operations Supervisor
determined that as a Claims Technical Expert, Complainant was expected to deal with other
employees and management in a professional manner and issued him the September 12, 2017
reprimand.
Complainant asserted further that the Operations Supervisor accused him of stealing time when
going to the bathroom and had managers on her staff monitor his bathroom usage and time spent
at this desk. The Manager stated that during a staff meeting, the issue was addressed of proper
ways of signing in and signing out from the electronic timekeeping program.

2019005606	4
He stated “we specifically went over a 5-minute grace period that is given to employees to sign in,
and many use it at the end of the day. We explained that if you sign out for example at 5:25 but
actually type in 5:30 that is okay but you cannot leave the office until 5:30.” Following the
meeting, several employees “were approached, because it was noticed, they signed out early and
left. We were just inquiring what happened and to please adhere to the rules. [Complainant] was
the one that used the words ‘steal time,’ not the supervisor.”
Furthermore, the Manager stated that all employees use one set of restrooms on one side of the
building due to renovations “which means that all employees are bound to run into each other in
the restroom. We do not follow employees into the restrooms.”
The Manager stated that he was aware of Complainant’s car being scratched and he was referred
to report it to the police and “was given time to file a report.” Regarding to Complainant’s
allegation that he received a defamatory email from a named non-management co-worker/former
union representative, the District Manager averred that he has no jurisdiction because she works
in a different department.
Regarding Complainant’s allegation that he was denied the opportunity to work overtime because
he cannot work Saturdays due to his religion, the Manager asserted that Complainant “has never
been denied overtime. [Complainant] is offered overtime along with all employees of the Jamaica
District Office (DO) when there is available overtime. [Complainant] has worked several if not
most of the Saturday overtime offered to the staff since he has been in the Jamaica DO.” In
addition, the Manager noted that Complainant has never requested a religious accommodation.
The Operations Supervisor (Hispanic, Catholic), also Complainant’s first-line supervisor,
explained that she does not have authority “to instruct on the site security on how many people
can enter. Onsite security will inform management when Safety capacity has been reached.”
Complainant also asserted that after reporting a security practice to the Area Director, she accused
him of stealing time when going to the bathroom and had managers on her staff monitor his
bathroom usage and time spent at his desk. The supervisor stated “this is not true.” The supervisor
also noted that Complainant claimed that on December 4, 2017, she handed out large plastic candy
canes with Hershey kisses to every employee except him. Specifically, she stated that she gave
each employee a treat and “at that time, [Complainant] was not in my unit.”
Further, the supervisor stated that Complainant alleged that on January 26, 2018, she brought
bagels for the staff, telling everybody about the bagels except Complainant which was not true.
She stated that management provided the staff with bagels.
Beyond his bare assertions, Complainant failed to produce evidence to prove, by a preponderance
of the evidence, that management’s proffered explanations for its actions were a pretext designed
to mask discrimination.

2019005606	5
Complainant’s claims of discrimination are precluded based on our findings that Complainant
failed to establish that any of the actions taken by the Agency were motivated by his protected
bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.
Because we affirm the Agency’s disposition of this case on the merits, we will not address its
disposition of this complaint on procedural grounds.
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. 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).

2019005606	6
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 28, 2020
Date