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

Equal Employment Opportunity Commission

Sep 13, 2021

Appeal No. 2020002953 (E.E.O.C. Sep. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ayesha W.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2020002953 Hearing No. 531-2019-00657X Agency No. PHI-19-0128-SSA DECISION On March 6, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 21, 2020, final decision dismissing her complaint of 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission VACATES the Agency’s final decision. ISSUE PRESENTED The issue presented herein is whether the EEOC Administrative Judge (AJ) erred when granting the Agency’s motion to dismiss Complainant’s complaint. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Claims Specialist, GS-11 at the Agency’s field office in Charlotte Hall, Maryland. On December 13, 2018, 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. 2020002953 2 Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and age (65) when: A. from 2016-present, Complainant was subjected to harassment and disparate treatment regarding assignment of duties, promotion opportunities,2 unfair criticism, and slanderous comments; and B. on October 1, 2018, she received an unfavorable Performance Assessment and Communication System (PACS) evaluation. At the conclusion of the investigation, 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 Administrative Judge (AJ). Complainant requested a hearing. On November 6, 2019, the Agency filed a motion to dismiss the complaint. The Agency stated that Complainant alleged three claims, not two as identified, in her formal complaint: 1) claim of harassment; 2) a claim of non-selection to the Claims Specialist position; and 3) a claim regarding her PACS evaluation. As for Claim 1, the Agency argued that the matter should be dismissed because Complainant failed to show that the events alleged occurred because of her protected bases or that the events were sufficiently severe or pervasive to state a claim of harassment pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency argued that Claim 2 should be dismissed because Complainant did not contact the EEO Counselor within 45 calendar days of learning of the non-selection pursuant to 29 C.F.R. § 1614.105(a)(1), and 29 C.F.R. § 1614.107(a)(2). Complainant made initial EEO contact on November 2, 2018. Finally, as to Claim 3, the Agency argued that it should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(1), as Complainant’s “Fully Successful” rating was not an adverse action and that Complainant did not show that she received such a rating because of her protected bases. Therefore, the Agency asked that the AJ dismiss the complaint as a whole pursuant to 29 C.F.R. § 1614.107(a)(1) and (2). Complainant did not respond to the Agency’s motion. By Order dated February 5, 2020, the AJ granted the Agency’s motion to dismiss. As such, the AJ remanded the matter back to the Agency. On February 21, 2020, the Agency issued its final order implementing the AJ’s decision. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contests the dismissal of her claims. Complainant requests that a review be conducted due to the ongoing discriminatory actions of management towards her. Complainant asserts that there are ongoing consistent acts of reprisal, work assignments with no time to complete the process, injustice, harassment, and discrimination based on Complainant’s protected classes. 2 Complainant indicated in her support of her claim of harassment that she was not selected for the position of Claims Specialist, GS-12, in a different field office. 2020002953 3 The Agency requests that the Commission affirm its decision implementing the AJ’s decision to dismiss the complaint as a whole. STANDARD OF REVIEW 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, 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”). ANALYSIS AND FINDINGS Claim 2 EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. The record indicates that the non-selection occurred in May 2017, however, Complainant did not contact the EEO Counselor until November 2018, well over a year after the event occurred. As such, we find that the AJ correctly dismissed this claim as a discrete act. However, we note that Complainant did not allege Claim 2 as a separate discrete act but part of claim of harassment alleged in Claim 1. We note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). 2020002953 4 The Court further held, however, that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. The Court defined such “discrete discriminatory acts” to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. Here, as Complainant alleged Claim 2 as background evidence to her claim of harassment, we find that the claim should also be considered in conjunction with her claim of harassment as alleged in Claim 1. Claims 1 and 3 Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disabling condition, genetic information, or reprisal. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If complainant cannot establish that she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). In Claim 3, the AJ granted the Agency’s motion dismissing this matter as Complainant failed to show that she was subjected to an adverse action with respect to her PACS evaluation. We disagree. We find that a performance appraisal rating that may constitute a harm. Kit R. v. Dep’t of the Army, EEOC Appeal No. 0120140952 (Sept. 23, 2016) (stating that the Agency must provide complainant with a remedy that constitutes full, make-whole relief when her 2009 National Security Personnel System (NSPS) annual performance appraisal was downgraded from a Level 4 (exceeds)); Turner v. Dep’t of the Navy, EEOC Appeal No. 0120112688 (Jan. 19, 2012) (finding that Complainant was aggrieved when he received a negative appraisal). In this case, Complainant is arguing that her rating should have been higher. Therefore, we determine that the AJ’s dismissal of Claim 3 was not appropriate. In Claim 1, Complainant alleged that she was subjected to harassment. The Commission has held that where, as here, a complainant does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We find that Complainant’s allegations are sufficient to state a claim of a hostile work environment, including the non-selection alleged in Claim 2. The agency and the AJ have addressed the merits of her allegations, which is inappropriate in determining whether alleged harassment states a claim. For example, in the Agency’s Motion to Dismiss before the AJ, they list several allegations of harassment made by Complainant, such has having papers “thrown” at her and a proposed suspension. 2020002953 5 Such allegations, if true, could rise to the level of creating a hostile work environment. Therefore, under the circumstances of this case, we find that the AJ’s dismissal of Claims 1 and 3 was improper. Furthermore, we note that the Agency’s motion which was adopted by the AJ held that Complainant’s claims failed to state a claim because she failed to establish that the events alleged were based on her protected bases. Again, the Commission finds that the dismissal has addressed the merits of Complainant’s complaint. We find that the AJ’s dismissal finding that Complainant did not establish that the events occurred because of her protected bases, goes to the merits of Complainant’s complaint, and is irrelevant to the procedural issue of whether she has stated a justiciable claim under Title VII. See Osborne v. Dep’t of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). CONCLUSION We find that the complaint was improperly dismissed by the Agency. Therefore, we VACATE the Agency’s final order and we REMAND the matter at the point processing ceased in accordance with the ORDER below. ORDER Within thirty (30) calendar days of the date this decision is issued the Agency shall submit to the Hearings Unit of the EEOC’s Baltimore Field Office a renewed request for a hearing on this complaint, the complaint file, and a copy of this appellate decision. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision in accordance with 29 C.F.R. §1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 2020002953 6 The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020002953 7 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 2020002953 8 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 September 13, 2021 Date