[Redacted], Charlie O., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jun 28, 2021

Appeal No. 2020001986 (E.E.O.C. Jun. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlie O.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2020001986 Agency No. DOS-0309-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 22, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue is whether Complainant established that the Agency discriminated against him in reprisal for prior protected EEO activity when it requested that he repay a debt. BACKGROUND At the time of events giving rise to this complaint, Complainant worked in a temporary position as a Regional Federal Benefits Officer at the Agency’s U.S. Embassy in Mexico City, Mexico. Complainant stated that he served in this position from October 3, 2010, through August 3, 2013. Report of Investigation (ROI) at 62. Complainant returned to the Social Security Administration (SSA), effective August 3, 2013. ROI at 40. 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. 2020001986 2 Complainant stated that the Agency continued to pay his full salary from August 3, 2013, through August 3, 2014, which was in addition to his regular salary from the SSA. ROI at 65. On August 20, 2014, the Agency signed the Notification of Personnel Action (“SF-50”) on the Termination of Complainant’s appointment, effective August 3, 2013. ROI at 97. On October 13, 2015, the Agency informed Complainant that it had completed its review of his account and determined that Complainant was overpaid by a gross amount of $128,894.94, and that Complainant needed to repay a net amount of $103,928.94. ROI at 110-13. On November 1, 2015, Complainant submitted a request for a waiver of the entire debt. ROI at 105-09. On November 6, 2015, the Agency informed Complainant that his request was under review, and that the debt collection was suspended pending the review. ROI at 120. On March 28, 2019, the Associate Comptroller (AC) issued a decision denying Complainant’s request for a waiver of the debt because he was not eligible for a waiver under 5 U.S.C. § 5584. AC noted that the overpayment was caused by an administrative error, but it did not relieve Complainant of his responsibility to repay the debt. AC determined that the correct amount of the overpayment was $103,321.00. ROI at 145-53. On May 13, 2019, the Agency approved Complainant’s request for an installment payment plan of $1,501.00 per month for 49 months, with a final payment of $1,453.04. ROI at 94-95. On May 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity (Case No. HQ-13-0804-SSA)2 when as recently as April 10, 2019, he was requested to repay a debt stemming from his assignment in Mexico.3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant did not establish a prima facie case of reprisal because he did not show that management was aware of his prior EEO activity or a linkage between his EEO activity and the adverse action. The Agency also found that management provided 2 We note that Complainant’s prior EEO complaint was filed against the SSA, and not the Agency. The SSA found that Complainant did not establish discrimination for any of his claims, including his removal from his temporary position in Mexico. Complainant appealed the Agency’s final decision, and the Commission dismissed the appeal as untimely in Elliott J. v. Soc. Sec. Admin., EEOC Appeal No. 0120160437 (Feb. 22, 2018). 3 Complainant filed an EEO complaint with the SSA on the same claim. The SSA dismissed the complaint for lack of jurisdiction because the allegations referred to in the complaint were taken by the Agency, and not the SSA. Complainant appealed the dismissal, which was affirmed by the Commission in Charlie O. v. Soc. Sec. Admin., EEOC Appeal No. 2019005334 (Jan. 31, 2020). 2020001986 3 legitimate, nondiscriminatory reasons for its action when it acted according to regulatory requirements in requiring repayment. The Agency noted that, while management acknowledged an error in making the overpayment in the first place, there was no evidence in the record of discriminatory animus based on reprisal in its actions and decisions toward Complainant. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal and submitted a statement in support of his appeal, with 23 attachments. The Agency did not respond to Complainant’s appeal. CONTENTIONS ON APPEAL Complainant argues that the Agency committed administrative errors, purposefully ignored substantial evidence, acted with negligence, and harassed him. Complainant asserts that he established a prima facie case of reprisal, and that the Agency has not demonstrated that it acted with “legitimacy, equity and good conscience, due diligence and in a non-discriminatory manner.” Complainant states that the Agency admits it was at fault for creating the overpayment and it committed two, maybe more, administrative errors; for example, it erred when it purposely did not sign his SF-50 form until a year later and issued multiple SF-50 forms with different reasons for the action, including separation, personal reasons, and reassignment. Complainant states that he believes that the payment was to make up for the curtailment of his temporary assignment and possibly a means to allocate remedies for his prior EEO complaint (Case No. HQ-13-0804-SSA). Complainant also argues that he believes that animus existed. Complainant states that the Agency demonstrated “prejudiced intention or spiteful, malevolent ill will” during the processing of his claim and chose to ignore his submitted evidence. Complainant also asserts that the Agency refused to employ its discretionary authority to grant a waiver. Complainant argues that the Agency only provided a summary of the management officials’ “depositions” and purposefully refused to contact his witnesses, who could have possibly helped with his claim. Complainant requests that the Commission find in his favor and waive his obligation to repay the salary overpayment. 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 (EEO MD-110), at Chap. 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”). 2020001986 4 ANALYSIS AND FINDINGS New evidence on appeal As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. Here, Complainant provided 23 attachments with his appeal and we note that most of the submitted documents are already contained in the record. However, Complainant did not provide arguments or evidence to show that any new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Accordingly, the Commission declines to consider this new evidence on appeal. For the sake of argument, we find that even if this evidence is considered on appeal, the evidence does not alter our final disposition that Complainant failed to prove by a preponderance of the evidence that the Agency discriminated against him in reprisal for his prior protected EEO activity. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of retaliation for his prior protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its action. AC stated that she reviewed Complainant’s case in March 2019, and she determined that Complainant owed the debt and that it could not be waived. ROI at 878. AC noted Complainant’s arguments and evidence for his waiver request, such as no fraud or misrepresentation on his part and his belief that the overpayment was a monetary advance for his 2020001986 5 EEO complaint, and she stated that Complainant’s supporting documents were reviewed before making the determination of his waiver request. ROI at 879-80, 882. AC stated that a waiver may not be granted if there exists an “indication of fraud, misrepresentation, or lack of good faith on the part of the employee” and that fault was considered to have existed if the employee knew, or should have known, through an exercise of due diligence that an error occurred but failed to take action, under 5 U.S.C. § 5584. AC stated that Complainant indicated that he received every Earnings and Leave statement from August 2013 through August 2014, while no longer working for the Agency. AC stated that an employee is responsible for verifying the accuracy of the Earnings and Leave statements and reporting errors in a timely manner. ROI at 882. AC stated that, while Complainant asserted that the payments could have been for an EEO case, Complainant would have received official documents clearly documenting any resolution or outcome of an EEO complaint. AC also stated that, because Complainant served on a reimbursable detail assignment, the Agency contacted the SSA to ask if the SSA had reimbursed the Agency for Complainant’s salary, and the SSA verified that it had not. AC also stated that the Agency had been unable to locate an EEO complaint filed by Complainant against the Agency. AC determined that Complainant was not relieved of his obligation to repay this debt because she found that he was at fault within the meaning of 5 U.S.C. § 5584. ROI at 882-83. AC noted that the Agency’s failure to timely process Complainant’s SF-50 form, which was not signed until 2014, could be construed as administrative errors. However, this did not relieve Complainant of his responsibility of repayment. ROI at 881, 884. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant argued that the Agency committed administrative errors, such as when it purposely did not sign his SF-50 form until a year later and issued multiple SF-50 forms. There is no dispute that the Agency’s administrative errors resulted in the overpayment to Complainant. However, a mistake, without more, does not establish discriminatory animus. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018); Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (July 10, 2018). Complainant asserted that the Agency demonstrated “prejudiced intention or spiteful, malevolent ill will.” However, Complainant did not provide any supporting evidence and only made bare assertions of retaliatory animus, which are insufficient to prove pretext or that AC’s actions were retaliatory. 2020001986 6 In addition, while Complainant argued that the Agency failed to contact his witnesses, he did not specify these witnesses in his appeal, nor explain what testimony they could provide. We also note that AC stated that she considered Complainant’s supporting documents, and that Complainant did not provide any evidence showing that AC failed to consider his documents when making her determination to deny his waiver request. While Complainant stated that he believed that the payment was possibly a means to allocate remedies for his prior EEO complaint, Complainant did not prevail on his complaint and was not awarded any remedies. As such, we find that Complainant did not establish that the Agency retaliated against him for his prior protected EEO activity when it requested that Complainant repay a debt stemming from his assignment in Mexico. 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 finding that Complainant did not establish that the Agency discriminated against him in reprisal for prior protected EEO activity when it requested that he repay a debt. 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 2020001986 7 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. 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 2020001986 8 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 28, 2021 Date