Ariel L,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionJun 3, 20160120140121 (E.E.O.C. Jun. 3, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ariel L,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120140121 Agency No. ATL130013SSA DECISION Complainant filed an appeal from the Agency’s September 12, 2013, 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. The U.S. Equal Employment Opportunity Commission (EEOC or Commission) deems the appeal timely. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-11 Claims Representative with the Agency’s Columbus, Georgia office. On November 7, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of national origin (Hispanic) when on October 1, 2012, and continuing, management officials assigned him work from others (non-Latinos) to complete that was complex, past due, and incomplete, yet management officials took no action against the poor performers whose work was reassigned to him. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a 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. 0120140121 2 hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. FACTUAL BACKGROUND On August 14, 2012, Complainant volunteered to process all internet and paper applications for the office, and took over these duties on September 10, 2012. Complainant subsequently complained to his first-line supervisor (S1) that many of the paper claims were not filled out completely, making it difficult to process the claim in a timely and accurate manner, and suggested that these incomplete claims should not be accepted. S1 advised Complainant to continue to perform the job as assigned. On October 1, 2012, Complainant asked to be relieved from the internet and paper applications assignment, and S1 assigned him to the Administrative Law Judge (ALJ), reconsideration allowances, and initial claims unit, giving him the caseload previously assigned to one of his co-workers (C1). The office goal is to clear cases in the ALJ’s reconsideration allowances, and initial claims unit within sixty days. S1 assigned Complainant’s former caseload of internet and paper applications to C1. The following day, on October 2, 2012, Complainant informed S1 that C1 had allowed up to thirty- one days to lapse on certain cases without taking any action. S1 concluded there was no problem with C1's work because she assigned the caseload to C1 on September 10, 2012, only three weeks before it was re-assigned to Complainant, and C1 inherited old work that put him behind. S1 states she gave Complainant "plenty of time" to clear his cases because of the problems he brought to her attention, and had no issues with his performance. Complainant e-mailed his second-line supervisor (S2) on October 2, 2012, asking for a meeting to discuss his caseload. He e-mailed S2 a second time on October 4, 2012 and S2 met with him the same day. Complainant asked why S2 took no action against C1 for not clearing his cases fast enough. S2 informed Complainant that he was not at liberty to discuss actions taken against other employees. S2 concluded no action needed to be taken because C1 had only recently received those cases himself, and some of the cases were older when he got them. During the meeting, Complainant asked for his union representative to be present. S2 denied this request because it was merely a discussion about work assignments. Both S1 and S2 stated they were aware of Complainant's national origin. S2 was not involved in assigning Complainant work, and S1 stated she did not assign Complainant work due to his national origin. 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, at Chapter 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, 0120140121 3 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”). Assuming that Complainant established a prima facie of discrimination, the Agency concluded that he, nevertheless, failed to present sufficient evidence that the Agency’s legitimate, non- discriminatory reason for the employment action (i.e., reassigning him work at his request) was a pretext or otherwise motivated by discriminatory animus. We agree with the Agency’s analysis and findings. We note that Complainant was treated the same as his non-Hispanic co-workers (i.e., he was never disciplined and his performance rating was not affected by the backlog of work assigned to him). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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 tends 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. 0120140121 4 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 June 3, 2016 Date Copy with citationCopy as parenthetical citation