Phyllis F.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 28, 2020

2019004987 (E.E.O.C. Jan. 28, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Phyllis F.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019004987 Hearing No. 450-2017-00262X Agency No. DAL-16-0296-SSA DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 2, 2018 final order concerning an 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Senior Attorney at the Agency’s Office of Disability Adjudication and Review in Dallas, Texas. On May 7, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian/Chinese), color (olive), national origin (Asian), sex (female), age, and in reprisal for prior protected EEO activity under the ADEA and Title VII when: 1. On October 28, 2015, Complainant was required to work through her lunch hour or take leave and was then required to work additional time after the end of her work day without pay. 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. 2019004987 2 2. On November 9-10, 2015, Complainant was charged fifteen (15) minutes of Absent Without Leave (“AWOL”) for November 6, 2015. 3. From June 20, 2015 and ongoing, she was subjected to harassment regarding her working conditions, including work assignments, supervision, review of work, time and attendance, and false allegations by management. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing. To this end, the AJ issued a Notice of Proposed Summary Judgment (Notice) on September 10, 2018. The AJ provided the parties until September 25, 2018, to respond to the Notice. The Agency submitted a response to this Notice in a timely fashion. The AJ noted that Complainant did not provide a timely response. As such, the AJ issued a decision which implemented the Notice on October 1, 2018, without additional comment. On November 2, 2018, the Agency subsequently issued a final order adopting the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to harassment as alleged. On December 6, 2018, the Agency emailed Complainant to inform her that it had tried to deliver the final decision, however, it had not been able to deliver its final decision. The Agency asked that Complainant provide an updated address for her. The Agency asserted that she did not respond. Complainant filed the instant appeal on March 17, 2019. She asserted that she never received the AJ’s Notice. She argued that she should have been provided with the opportunity to respond to the AJ’s arguments regarding issuing a decision without a hearing or the AJ’s finding of no harassment. In response to Complainant’s appeal, the Agency argues that Complainant’s appeal is untimely filed. The Agency notes that, beginning in November 2018, it mailed its decision to Complainant on two occasions. The Agency included copies of emails indicating that the United Postal Service (UPS) attempted to deliver the final decision four times. The UPS notification to the Agency stated that no one was available to receive the delivery. As such, the final decision was returned to the Agency. Subsequently, in December 2018, the Agency tried to obtain an updated address from Complainant in order to deliver the final decision. The Agency argued that Complainant refused delivery. Therefore, the Agency contends that due to Complainant’s refusal, her appeal filed in March 2019 should be considered untimely. Complainant responded to the Agency’s motion to dismiss the appeal. Complainant argued that she did not refuse delivery of the final decision. Further, she stated that the email only asked for an updated address. Complainant indicated that she did not have an update for the Agency. Therefore, she did not respond. 2019004987 3 As an initial matter, we are unable to conclude from the record before us that Complainant’s appeal is untimely. While the Agency argued that Complainant was willfully refusing to receive the final decision, we find that the record does not clearly support that assertion. While the record is clear that UPS attempted delivery of the Agency’s final decision on four occasions, the notification from UPS merely stated that they went to the address and no one answered the door. There is nothing in the record indicating Complainant was aware of the UPS delivery attempt or she “refused” to open the door. Further, the Agency claimed that it put Complainant on notice of the final decision when it emailed her in December 2018. A review of the email does not indicate that the Agency included a copy of the final decision. Accordingly, we cannot find that Complainant’s appeal was untimely filed. Complainant argued that she did not receive a copy of the AJ’s Notice and only received the AJ’s decision implementing the Notice. After a review of the AJ’s Notice and its certificate of service, we find that Complainant was provided a copy of the decision via email to one of her personal email addresses. We note that the record included other emails sent by Complainant from the same email address. As such, we find that the AJ served Complainant a copy of the Notice. The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2019004987 4 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). 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. 2019004987 5 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 January 28, 2020 Date