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

Equal Employment Opportunity Commission

Mar 7, 2022

Appeal No. 2021001455 (E.E.O.C. Mar. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deon C.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021001455 Agency No. PHI-19-0772-SSA DECISION 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 October 19, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Claims Specialist (Social Insurance Specialist), GS-11, at the Agency’s Wabash Field/District Office facility in Baltimore, Maryland. On July 26, 2019, Complainant filed an EEO complaint alleging that: 1. The Agency subjected Complainant to harassment based on age (over 40), sex (male), race (African American), disability (physical), and reprisal (prior EEO activity) between November 15, 2016, and the present, in terms of working 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. 2021001455 2 condition, working assignments, reasonable accommodation, reprimand, suspension, time and attendance, Opportunity to Perform Successfully Plan (OPSP), telework, and absent without leave (AWOL). 2. The Agency denied Complainant’s reasonable accommodation based on disability (physical) since January 2019, regarding transfer to another local field office relocation. 3. The Agency subjected Complainant to disparate treatment based on age (over 40), sex (male), race (African American), disability (physical), and reprisal (prior EEO activity) when on April 9, 2019, Complainant received a reprimand for incomplete work assignments, and discourteous and aggressive behavior towards an Agency claimant. 4. The Agency subjected Complainant to disparate treatment based on age (over 40), sex (male), race (African American), disability (physical), and reprisal (prior EEO activity) when on April 9, 2019, Complainant received a decision to suspend for 10 days (April 21 - April 30, 2019). 5. The Agency subjected Complainant to disparate treatment based on reprisal (prior EEO activity) when on July 2-3, 2019, Complainant’s wife sustained a head injury, Complainant requested leave, and his manager threatened him with AWOL. 6. The Agency subjected Complainant to disparate treatment based on age (over 40), sex (male), race (African American), disability (physical), and reprisal (prior EEO activity) when on November 19, 2019, management terminated Complainant’s telework. 7. The Agency subjected Complainant to disparate treatment based on reprisal (prior EEO activity) when on January 14, 2020, Complainant was placed on an Opportunity to Perform Successfully Plan (OPSP). 8. The Agency subjected Complainant to a per se violation of the Rehabilitation Act when, on or about July 8, 2019, he provided his wife’s medical documentation to his manager in support of his request for leave, and they were unable to locate the medical documentation when he asked that it be returned. 9. The Agency subjected Complainant to disparate treatment based on age (over 40), sex (male), race (African American), disability (physical), and reprisal (prior EEO activity) when on January 15, 2020, Complainant was placed on AWOL. 10. The Agency subjected Complainant to disparate treatment based on reprisal (prior EEO activity) when on January 16, 2020, Complainant’s OSPS was updated to include mentorship and new duty assignments. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2021001455 3 Complainant filed the instant appeal. ANALYSIS AND FINDINGS 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”).2 Generally, claims of disparate treatment are examined under the tripartite 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. 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 Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 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. 2 Although the Agency dismissed a portion of the complaint, we need not address those reasons for dismissal since the claims were investigated and we find no discrimination on all claims. 2021001455 4 Where 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); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). Title VII also prohibits employers from “discriminat[ing] against any of [its] employees ... because [such employees have] opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge . . . or participated in any manner in an investigation, proceeding or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). As a general matter, the statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004. (Aug. 25, 2016). Harassment of an employee that would not occur but for the employee’s race, color, sex, national origin, age, disability, religion, or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); “Enforcement Guidance on Harris v. Forklift Systems, Inc.”, EEOC Notice No. 915.002 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee’s work performance. See Harris v. Forklift Svs., Inc., 510 U.S. 17, 21 (1993). The Supreme Court has stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII’s purview.” Harris, 510 U.S. at 22. The conditions of employment are altered only if the harassment culminated in a tangible employment action or was sufficiently severe or pervasive to create a hostile work environment. Id.; see also Toney E. v. U.S. Postal Serv., EEOC Appeal No. 2019005346 (Nov. 5, 2019). To prove a case of a hostile work environment, complainant must show: (1) that he belongs to a protected group; (2) that he was subjected to unwelcome harassment; (3) that the harassment complained of was based on his protected status; (4) that the harassment affected a term, condition or privilege of employment; and (5) that the agency knew or should have known of the harassment. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. “Enforcement Guidance on Harris v. Forklift Systems, Inc.,” supra. 2021001455 5 After a review of the record, we find that Complainant failed to prove by the preponderance of the evidence that he was discriminated against as alleged. Even assuming Complainant could establish a prima facie case of discrimination, he failed to show that the Agency’s reasons for its actions were pretext for discrimination. Claim 6 Complainant alleges that he was discriminated against when management terminated his telework. A November 19, 2019 memorandum from the Agency Commissioner indicated that telework was expiring for all employees with the expiration of the Agency/Union contract. As Complainant was not singled out or treated less favorably than his similarly situated coworkers, he fails to show he was discriminated against in claim 6. Claim 2 Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Complainant asserts that management failed to grant him a reasonable accommodation. Specifically, Complainant asserts that during the summer of 2018, he requested a transfer to another Agency office because management’s harassment was exacerbating his heart condition. He alleges that he submitted his request to his third line supervisor (S3), but it was denied. Notably, the Agency denies receiving any such request and Complainant has not submitted any evidence to show that he indeed submitted a request. Therefore, we find that Complainant has failed to establish that he was denied a reasonable accommodation. 2021001455 6 Claims 3 & 4 Complainant asserts that the Agency discriminated against him when on April 4, 2019, he received a reprimand for incomplete work assignments, and discourteous and aggressive behavior towards and customer. He also received a decision to suspend for 10 days (April 21 - 30, 2019). Complainant’s first line supervisor (S1) indicated that on February 25, 2019, she witnessed Complainant participate in a verbal altercation with a customer that resulted in Complainant allegedly standing up in a threatening way and making loud inappropriate comments to the customer. S1 asserted that later the same day, while giving Complainant written feedback on an assignment, Complainant was hostile and disrespectful to her. A March 18, 2019 memorandum indicates that the altercation with the customer and Complainant’s subsequent interaction with S1 was the basis for his suspension. Complainant asserts that S1’s account of his altercation with the customer was inaccurate. He asserts he was defending himself after the customer threatened him and denies ever speaking to S1 disrespectfully. Complainant has provided no evidence other than his own statement to rebut management’s version of events and it is well established that Complainant has the burden of showing that the Agency’s asserted reasons are both false and that discrimination was the real reason for its actions. Hicks, 509 U.S. at 515. Complainant has not met his burden of persuasion in this regard. Furthermore, Complainant asserts that the Agency’s actions were based on sex and age because S1 and his second line supervisor (S2) are both female and significantly younger than him. He generally asserts the Agency’s actions were retaliatory because he has been under increased scrutiny since he filed a 2016 EEO complaint, and he alleges the Agency’s actions are related to his disability because he believes management has a lack of understanding of his medical condition and how it limits what he can do. Notably, Complainant has not indicated why he believes the Agency’s actions were motivated by racial discrimination. Complainant has not identified any evidence other than his own opinion that the Agency’s asserted legitimate, nondiscriminatory reasons were pretextual. As such, we find that Complainant has not shown by a preponderance of the evidence that Agency’s discipline of him was motivated by discriminatory animus. Claims 5 & 8 The record indicates that on July 2, 2019, Complainant requested to take sick leave because his wife suffered a head injury, and he needed to be available to assist her. Complainant alleges that when he contacted his supervisors to make the request, he was told that he would need to submit administratively acceptable medical documentation to verify the reason for his absence or be charged with AWOL. Once Complainant submitted the requested documentation, his leave was approved. Complainant further alleges that he requested that the Agency return the medical documentation, but management was unable to locate it. 2021001455 7 While the Agency denies threatening Complainant with AWOL, it asserts that verification was required to approve his leave. The Agency asserted that it requested verification of his need for sick leave because Complainant’s leave request was right before a holiday when leave coverage had already been established, which is consistent with Agency policy and guidance. Complainant asserts that the Agency’s asserted reason is pretext for retaliation because S1 and S3 were named as responsible management officials in his prior EEO claim. However, Complainant provides no evidence other than his own opinion to support this contention. Complainant also alleges that the Agency committed a per se violation of the Rehabilitation Act when it was allegedly unable to return his wife’s medical documentation. Here, we find that since it was not Complainant’s medical information that is at issue, Complainant has no standing to raise a Rehabilitation Act violation claim. Also, Complainant has not claimed or shown that any improper disclosure was made. In sum, Complainant has failed to show by a preponderance of the evidence that the request for medical documentation to verify his sick leave request was retaliatory or in violation of the Rehabilitation Act. Claim 7 & 10 The record shows that in December 2019, S1 informed Complainant that she planned to place him on an OPSP because of his performance during that period. The evidence shows that on January 14, 2020, S1 held a meeting with Complainant to place him on an OPSP for 60 days. Complainant alleges that during the meeting the OPSP noted that he was assigned a mentor, which he asserts was not true and unnecessary given his tenure in his position. On January 16, 2020, S1 issued an updated OPSP that removed the statement about him having a mentor but identified a Claims Technical Examiner to monitor and review his work. Complainant asserts that his placement on an OPSP was retaliatory. S1 asserts that the OPSP was necessary because Complainant was not performing at a successful level in the critical elements of his performance plan “demonstrates job knowledge” and “achieves business results.” S1 cited to several examples in Complainant’s work product between October 2019 and November 2019 that contained adjudication and payment errors. Complainant asserts that the Agency’s asserted reason is pretext for retaliation because S1 and S3 were named as responsible management officials in his prior EEO claim. However, Complainant provides no evidence other than his own opinion to support this contention. Thus, Complainant failed to rebut the Agency’s asserted legitimate. nondiscriminatory reason by a preponderance of the evidence. 2021001455 8 Claim 9 The record shows that on January 15, 2020, the day after Complainant was informed he was being placed on OPSP, Complainant called S1 to request sick leave. S1 told him he would be required to submit medical documentation or be charged with AWOL. When Complainant did not submit medical documentation to verify the need for his absence within the required timeframe, he was charged eight hours of AWOL. S1 asserted that during a meeting on January 14, 2020 - the day before the AWOL - Complainant told her he would not be coming to work the following day. S1 asserts that she requested medical documentation because she suspected sick leave abuse. Complainant failed to establish that the Agency’s asserted legitimate, nondiscriminatory reasons for requesting medical documentation and the subsequent AWOL charge were a pretext for discrimination. He has not presented any evidence suggestive of discriminatory animus, and he has not shown that there were any similarly situated employees not in his protected groups who were treated more favorably under similar circumstances. Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). Claim 1 Lastly, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. 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. 2021001455 9 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. 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. 2021001455 10 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 March 7, 2022 Date