[Redacted], Andres M., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Oct 25, 2021

Appeal No. 2021003312 (E.E.O.C. Oct. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Andres M.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2021003312 Agency Nos. PHI-19-0601-SSA PHI-20-0725-SSA DECISION On May 20, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 5, 2021 final decision concerning the two captioned formal complaints, which claimed unlawful 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 relevant time, Complainant worked as a Benefits Authorizer, GS-9, at the Agency’s Mid-Atlantic Processing Center (MATPSC) in Philadelphia, Pennsylvania. Complainant filed a formal EEO complaint on March 9, 2020 (Agency No. PHI-19-0601-SSA) and May 12, 2020 (Agency No. PHI-20-0725-SSA), respectively.2 Complainant claimed that he was subjected to discriminatory harassment based on his race, sex, and in reprisal for prior EEO activity when: 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 record reflects that Complainant declined to participate in the investigation for Agency No. PHI-20-0725-SSA. 2021003312 2 1. on April 25, 2019, Complainant was issued a 14-day decision to suspend (Agency No. PHI-19-0601-SSA); 2. beginning on October 1, 2018 until May 20, 2019, management held two Weingarten meetings, accused Complainant of engaging in illegal activity on work property, diminished work performance based on call reviews, issued a proposal to suspend, and implemented a decision to suspend3 (Agency No. PHI-19-0601-SSA); and 3. on June 19, 2020, management terminated Complainant’s employment with the Agency (Agency No. PHI-20-0725-SSA). After the investigation of the claims, and in accordance with Complainant’s request, the Agency issued a final decision on February 5, 2021, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. Regarding claim 3, however, the Agency determined that this matter addressed a “mixed case complaint,” appealable to the Merits Systems Protection Board (MSPB), and not to the Commission. The record reflects that the Agency included a February 5, 2021 cover letter with the instant final decision. Therein, the Agency informed Complainant that if he chose to appeal Agency No. PHI-19-0601-SSA to the Commission, he should use EEOC Appeal Form 573. The Agency also informed Complainant that if he chose to appeal Agency No. PHI-20-0725-SSA to the MPSB, he should use MPSB Form 185 The instant appeal followed on both complaints. ANALYSIS AND FINDINGS 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 a complainant to prevail, he or she must first establish a prima facie case 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, non-discriminatory 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. 3 A Weingarten meeting is an investigative meeting between one or more management officials and one or more bargaining unit employees. 2021003312 3 Where, as here, 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). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Complainant was a Benefits Authorizer at the Agency’s Mid-Atlantic Processing Center for six years until June 2020. As part of his position, Complainant was responsible for making final determinations on the full range of post-adjudicative actions, entitlement, and non-entitlement to benefits, continuing entitlement to benefits, and the payment amounts. He was also responsible for initiating and responding to telephone contacts, including the 800 number, to resolve customer issues or discrepancies and/or explain or obtain information. The Assistant Module Manager (RMO1) was Complainant’s first-line supervisor from October 2019 through June 2020. The Assistant Module Manager (RMO2) was Complainant’s first-line supervisor prior to RMO1, but was on a temporary assignment from October 28, 2018 through February 25, 2019, and had no relationship with Complainant during that time. The Team Leader, Center for Disability Program Support since 2020, was Complainant’s second-line supervisor, however, when RMO2 was on assigned from October 2018 through February 2019, he served as Complainant’s first-line supervisor (RMO3). Claims 1 and 2 Regarding claim 1, Complainant asserted that on April 25, 2019, Complainant was issued a 14- day decision to suspend. The Team Leader (Caucasian, male) stated that he was the deciding official to issue Complainant a 14-day suspension. He noted that Complainant engaged in discourteous customer service and failed to follow telephone-handling procedures when he disconnected 15 of 44 calls with SSA claimants in a single day. Regarding claim 2, Complainant alleged that beginning on October 1, 2018 until May 20, 2019, management held two Weingarten meetings, accused Complainant of engaging in illegal activity on work property, diminished work performance based on call reviews, issued a proposal to suspend, and implemented a decision to suspend. The Team Leader offered Complainant a Weingarten meeting which was scheduled for March 5, 2019, but Complainant refused to meet with him despite a management directive to attend. Instead, Complainant’s representative attended the meeting without Complainant and said that Complainant declined to attend the meeting. Later that afternoon, on March 5, 2019, Complainant reconsidered and the meeting was the next day. 2021003312 4 On March 6, 2019, the Team Leader had a Weingarten meeting with Complainant and his representative. He placed each call one-by-one and asked Complainant if he knew why the calls were dropped. Complainant claimed that he does not recall the calls he had taken on that day. After playing the fifth call, Complainant no longer provided a verbal answer and just shrugged his shoulders. Complainant could not offer a reason why the calls were disconnected. The record contains a copy of Complainant’s Proposed to Suspend dated March 20, 2019, in which S2 placed Complainant on notice that for discourteous customer service and failure to follow telephone handling procedures. For instance, management observed multiple incidents on February 19, 2019, where several of Complainant’s 800 number calls were disconnected prior to services being fully rendered. With respect to Complainant’s allegation that other employees in the module were having problems with SPIKE and he was the only one disciplined, the Team Lead acknowledged there were some problems with the telephone system in April 2019, but those problems were inapplicable to Complainant’s calls.4 S1 (African American, female) stated that Complainant was subjected to Weingarten meetings for logging too early, disconnecting calls, and not identifying callers before releasing protected personal information. For instance, she noted that Complainant was scheduled to take call son the 800 line until 4:00 p.m., but he logged off the phone around 2:30 p.m. Moreover, S1 stated the decision was based on Complainant’s failure to follow policy and falsifying medical documents. Claim 3: Termination Regarding claim 3, Complainant alleged that on June 19, 2020, management terminated Complainant’s employment with the Agency. S1 stated that she made the decision to terminate Complainant from Agency employment for falsifying medical documents, failing to follow policy on 800 line, discourteous to customers on the 800 line. Prior to terminating Complainant, S1 consulted with her first-line and second-line supervisors. Furthermore, S1 stated that Complainant’s race, male, and prior EEO activity were not factors in her decision to terminate Complainant. The record contains a copy of Decision to Removal dated June 19, 2020 in which the Module Manager placed Complainant on notice that he was being removed from Federal service effective the same day, June 19, 2020. Specially, the Module Manager determined that Complainant’s conduct “goes against the Agency’s mission, demonstrates your failure to adhere to guidelines regarding time and attendance policies and call-handling procedures, and is not aligned with our organizational interest. 4 The SPIKE term is not further defined in the record. 2021003312 5 More specifically, the submission of inauthentic medical documentation and discourteous behavior represents conduct unbecoming a Federal employee and a violation of the agency standards of conduct and cannot be tolerated. As a result of your continuing misconduct, I have decided to remove you to promote the efficiency of the Federal service that our customers deserve.” We note that the Agency determined that the matter addressed in claim 3 should be processed as a mixed case complaint because it involves a termination from Agency employment. A “mixed case complaint” is a complaint of employment discrimination filed with a Federal agency based on race, color, religion, sex, national origin age, or disability related to or stemming from an action that can be appealed to the MSPB. See 29 C.F.R. § 1614.302(a)(1). As a general matter, if an employee is dissatisfied with an agency’s final decision on a mixed case complaint, the employee may appeal the matter to the MSPB (and not the EEOC) within 30 days of receipt of the agency’s final decision. 29 C.F.R. § 1614.302(d)(1)(ii). At the time the agency issues its final decision on a mixed case complaint, the agency shall advise the employee of the right to appeal the matter to the MSPB (and not the EEOC) within 30 days of receipt and of the right to file a civil action as provided at 29 C.F.R. § 1614.310(a). Individuals who have received a final decision from the MSPB on the appeal of a final decision on a mixed case complaint may petition the EEOC to consider the MSPB’s decision. 29 C.F.R. § 1614.303(a). Here, the Agency cover letter dated February 5, 2021 and referenced above, which accompanied the instant final decision, correctly advised Complainant that he had the right to appeal claim 3 to the MSPB, not the EEOC. Complainant, however, filed his appeal for both captioned complaints with the EEOC. Complainant has no right to appeal claim 3 to the Commission at this juncture. Complainant should have filed an appeal regarding claim 3 with the MSPB. If the MSPB determined that it had jurisdiction and addressed the merits of claim 3, Complainant could petition for review with the Commission. If, however, the MSPB determined that that it did not have jurisdiction, the Agency would then inform Complaint of the right to request a hearing for claim 3. However, Complainant cannot unilaterally decide that claim 3 is not a mixed complaint. See Panaligan v. USPS, EEOC Appeal No. 0120130969 (June 11, 2013). CONCLUSION Regarding claims 1 and 2, encompassed in Agency No. PHI-19-0601-SSA, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. However, regarding claim 3, contained in Agency No. PHI-02-0275-SSA, the Commission is without jurisdiction to consider Complainant’s appeal of the Agency’s final decision. Complainant’s appeal of Agency No. PHI-20-0275-SSA is DISMISSED.5 5 We note that in response to Complainant’s appeal, the Agency argues that Complainant’s appeal should be dismissed because it was untimely filed. Because we affirm the Agency’s final 2021003312 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. decision on claims 1 and 2 and dismiss the appeal of claim 3, we find it unnecessary to address this matter. 2021003312 7 Any supporting documentation must be submitted together with the 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 October 25, 2021 Date