[Redacted], Anibal L., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Oct 7, 2021

Appeal No. 2021000758 (E.E.O.C. Oct. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anibal L.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021000758 Agency No. PHI-19-0770-SSA DECISION On November 9, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 15, 2020 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 relevant time, Complainant worked as a Claims Specialist (CS) at the Agency’s Workload Support Unit (WSU), Processing Center Operations (PCO), Mid-Atlantic Processing Center in Philadelphia, Pennsylvania. On July 30, 2019, Complainant filed the instant formal complaint. Complainant claimed that he was subjected to discriminatory harassment based on race (African American), sex (male) and in reprisal for prior protected EEO activity when: 1. On May 8, 2019, management issued Complainant a reprimand regarding a directive to complete cases assigned to him; 2. On May 8, 2019, management denied Complainant the opportunity to work overtime; 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. 2021000758 2 3. From June 2018 through May 2019, and continuing to February 20, 2020, Complainant was discriminated against in terms of reprimand, denial of overtime, inadequate training and assignment of duties; and 4. On May 20, 2019, management issued a negative mid-term Performance Assessment and Communications System (PACS) review.2 After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on October 15, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. 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 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. 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). 2 The record reflects that claim 4 was dismissed for failure to state a claim. Complainant raises no arguments regarding the dismissal. Therefore, we will only address claims 1-3 herein. 2021000758 3 Complainant worked as a Claims Specialist (CS) at the Agency’s Workload Support Unit (WSU), Processing Center Operations (PCO), Mid-Atlantic Processing Center in Philadelphia, Pennsylvania. The Agency’s Claim Specialists (CSs) authorize entitlements to programs administered by the Agency. The CSs review and authorize claims and other complex determinations for benefits under Title II, XVI, and/or XVIII of the Social Security Act. Further, CSs develop, investigate, and resolve claims and post-entitlement actions which may involve suspension, resumption, adjustment or termination of eligibility or payments. Regarding claim 1, Complainant asserted that on May 8, 2019, management issued him a reprimand regarding a directive to complete cases assigned to him. The Assistant Module Manager (African American, female) stated that since December 2018, she was Complainant’s first-line supervisor (S1). S1 explained that before issuance of the reprimand, she advised the Manager, who concurred with issuance of a reprimand. At that time, S1 stated that Complainant failed to submit his work in a timely manner and there were several instances in which he took approximately three or more weeks to act on the claims he was processing. The record contains a copy of the May 8, 2019 Official Reprimand in which S1 placed Complainant on notice that he was being reprimanded for failure to follow a management directive. Specifically, Complainant was not updating and processing cases in the Electronic Proficiency Application Data (e-PAD) as instructed by S1. She stated that on April 22, 2019, she met with Complainant to discuss his accountability sheets from April 9, 2019 through April 18, 2019. During their discussion, S1 noted that the same cases shown on his accountability sheets are the same cases he worked in prior weeks. She also noted that there were remarks in ePad to correct the claims that were reviewed by his mentor, that have not been processed. S1 stated that Complainant continued to disregard management directives. S1 stated that as a Claims Representative, Complainant holds a responsible position with the Agency whose commitment is to provide continuous and efficient service to its beneficiaries “many of whom are widowed, orphaned, age or disabled; some relying on Social Security benefits as their sole means of support…I have concluded that an official reprimand will impress upon you the seriousness of processing work timely, and putting workloads into ePAD immediately after for mentor review.” Moreover, S1 notified Complainant that his reprimand would be placed in his Official Personnel Folder for a period not to exceed one year. Regarding claim 2, Complainant alleged that on May 8, 2019, management denied Complainant the opportunity to work overtime, S1 asserted that on May 8, 2019, Complainant did not request overtime in WebTA.3 3 “WebTA” is a web-based time and labor process to facilitate timekeeping. 2021000758 4 In addition, she stated that Complainant was not denied any requests to work overtime until June 15, 2019. S1 stated, however, Complainant had been verbally advised on April 22, 2019, that due to his lack of productivity during normal working hours, management could not approve him to work any additional overtime hours. Regarding claim 3, Complainant alleged that on from June 2018 through May 2019, and continuing to February 20, 2020, in terms of reprimand, denial of overtime, inadequate training and assignment of duties. The Claims Technical Expert (CT Expert) (Caucasian, female) stated that during the relevant period she was a Module Manager. She explained that the unit processes internet claims filed in three states, and the Agency was beginning training on the Intelligent Disability (iDIB) applications. She stated that she was assigned with facilitation the needs of the trainees. CT Expert explained to Complainant and other trainees the training process and the initial timeline. She noted that initially, the training was to last for eight weeks, and cover primarily Title 2 disability claims training. She stated, however, after approximately 3 or 4 weeks after the training had begun, a decision was made to bring in the full Title 16 training. The CT Expert stated the first portion of training was conducted through video teleconferencing with a facilitator available to answer questions, and the second portion was OJT in field offices. After the IVT training, Complainant claimed to CT Expert that the IVT was not most effective means of training. He felt that it would have been better to have a live instructor so that the instructor could stop the training to allow the trainees to ask questions. Thereafter, the CT Expert informed her chain of command of this concern, and a refresher classroom training was provided. At that time, Agency management decided to conduct a refresher classroom training for Title 2 claims that lasted one to two weeks. Furthermore, she stated that the refresher training was immediately followed by the 6-week training for Title 16 claims. With respect to Complainant’s assertion regarding the additional training videos, about using E- Pad, CT Expert stated that she does not recall Complainant expressing his concerns. She noted that virtual mentors were used for each of the trainees, and the mentors were to review the trainee’s cases once they were placed in the E-pay system and provide verbal updates to the trainees. The class portion of training ended in August 2018, in which the trainees moved to on-the-job training (OJT) in individual field offices. Each trainee was paired with a mentor in the field office and the Field Office Managers were responsible for overseeing the trainees’ progress. From August 6, 2018 through September 28, 2018, Complainant completed his OJT training in the Aramingo Field Office.4 The OJT training progressed from (a) observation of trainees processing claims to (b) oversight of the trainees while they worked their claims to (c) assisting trainees in managing their own claims. 4 The record reflects that Complainant was assigned to the Aramingo Field Office because it was only seven miles from his home. 2021000758 5 From August 8, 2018 through August 17, 2018, Complainant missed OJT training to attend a convention. On his return to the Aramingo Field Office, the Claims Specialist was assigned to mentor Complainant. In addition, the Operations Supervisor checked in with Complainant daily and provided verbal feedback to Complainant on his progress. The Area Automations Coordinator was onsite twice a week and assisted Complainant with some training and questions he had. A few weeks after Complainant’s return from the convention, the District manager thought that Complainant needed more focused training and set specific times for training him on certain items. On September 13, 2018, Complainant received WAC training and on September 21, 2018, he received query reading training. During Complainant’s time in the Aramingo Field Office, the District Manager found Complainant sleeping in the training room. He instructed Complainant to keep the doors open and ask for assistance if he felt stuck on something or needed additional work. The District Manager felt that Complainant was unhappy with the training and had lost interest in the entire training program. On September 11, 2018, the District Manager provided a progress report on Complainant to the CT Expert. The District Manager reported that Complainant had shown improvement over the pervious weeks and six employees in the office had worked with him. He stated, however, Complainant had “a long way to go.” On September 18, 2018, Complainant sent an email to CT Expert and the Operations Manager addressing his complaints about the iDib training. He complained that the long commute to the Aramingo Field Office via public transportation because his car was in the repair shop. He also stated that the staff members at the Aramingo Field Office were very busy and that the claim applications that he was taking were “very involved with a lot of steps to remember.” The record reflects that two facilitators worked extensively to assist Complainant. Finally, Complainant was upset that the trainees were not allowed to work credit during the week and were forced to work a fixed schedule. S1 stated that she did not have any participation in the initial training provided as the employees had already begun training when she arrived. She stated, however, it was normal for employees who have already been trained in one portion of a training process to join an ongoing training during the portions which are new to those employees. Further, S1 stated that based on feedback from the field office managers, the training was extended because not as much material had been covered as they hoped. In addition, S1 stated that the decision was made to have the trainees take cases back to the WSU so they could receive credit for their work during training. She also noted that once the trainees returned to the WSU, they were supposed to continue working on their cases and place them in the E-Pad system. 2021000758 6 S2 stated that at one point Complainant’s mentor mentioned that he was having problems, and the mentor offered to make time for a virtual review. The mentor also mentioned that Complainant did not initially keep the appointments but eventually the mentor was able to review how to place claims in the E-Pad system. S2 stated, however, after the review, the mentor told her that Complainant was not placing items in the E-Pad. S2 stated that there was a lack of productivity from Complainant not getting the work done. Moreover, S2 stated that Complainant did not inform her that he felt harassed in regard to the inadequate training. Harassment Complainant has also alleged that management created a discriminatory hostile work environment. To prove his harassment claim, 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 his protected bases - in this case, his race, sex and prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, as we have already concluded, Complainant simply has provided inadequate evidence to support his claim that his treatment was the result of his race, sex or prior EEO complaint. A case of harassment is 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. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2021000758 7 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. 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. 2021000758 8 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 7, 2021 Date