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

Equal Employment Opportunity Commission

Sep 8, 2021

Appeal No. 2021001515 (E.E.O.C. Sep. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ivan J.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2021001515 Agency No. KC-19-1132-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 December 7, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Senior Attorney Advisor in the Agency’s St. Louis Downtown Hearing Office, in St. Louis, Missouri. S1 was the Group Supervisor and Complainant’s immediate supervisor. S2 was the Hearing Office Director and Complainant’s second level supervisor. Complainant filed a complaint alleging that: 1. The Agency subjected him to disparate treatment based on age (over 40) and disability (traumatic brain injuries, and back and leg issues) when, on July 15, 2019, he was suspended for five days. 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. 2021001515 2 2. The Agency subjected him to disparate treatment based on age and disability when, on August 29, 2019, he received an official reprimand. 3. The Agency subjected him to non-sexual harassment based on age and disability beginning in 2017, and continuing to present, in terms of reporting his communication, ordering psychological evaluations, critiquing his manner of speech, reprimands, a suspension, and being removed from the office. At the conclusion of the investigation,2 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. Complainant did not respond. The Agency issued a final decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. Regarding claim 1, S1 stated that she was the recommending official for the issuance of the five- day suspension of Complainant on July 15, 2019. On March 18, 2019, Complainant, according to S1, sent her an instant message stating that SSA is lucky I didn’t steal and save C4 when I had it in my munition’s storage area in the AF. I would blast this computer in place (would not do my house much good though!). Remind me to tell you the funny story about why we had that stuff in the nuclear storage area that required double locks and double release along with authentication to release it. S1 met with Complainant on March 26, 2019, to discuss the message and Complainant told her that he was trying to be funny and was frustrated with his computer. S1 stated that she found the remarks to be inappropriate and recommended suspension. In doing so, she also considered Complainant’s disciplinary history and the fact that he was previously reprimanded for making similar comments about shooting and military explosives. S2 was the deciding official for the five-day suspension. She denied that Complainant’s age or disability were determining factors in her decision. She stated that she made the decision based on the nature and seriousness of the offense. Regarding claim 2, S1 stated that on June 20, 2019, she received an email from S2 advising her that, earlier, Complainant had made a comment to a security guard that he was a threat to himself and others. The guard reported the incident to a Federal Protective Service (FPS) inspector during a routine check-in. The FPS inspector in turn informed S2. S1 stated it was her understanding that the FPS inspector discussed the incident with Complainant and reminded him not to engage in those kinds of comments even if he intended them to be funny or stated in a joking way. 2 Complainant did not provide an affidavit during the investigation; nor did he provide a rebuttal of the management official’s affidavit, although he was given the opportunity. 2021001515 3 Complainant, she stated, acknowledged that he should not have made the comment, that he was attempting to use “self-deprecating humor,” and that he was not making a threat. After meeting with Complainant, S1 determined that a reprimand was necessary and appropriate. S1 consulted with the Regional Attorney’s office prior to taking disciplinary action to ensure her actions were following the existing Union contract and were consistent with similar situations throughout the region. With respect to claim 3, S1 and S2 denied subjecting Complainant to harassment or discrimination. They each denied being aware of Complainant making any complaints of being subjected to harassment based on age, disability, or any other protected category. The record contains a notice of proposed removal, dated January 15, 2020, addressed to Complainant for failing to meet critical elements of his position as a Senior Attorney Advisor. The notice of removal detailed Complainant’s deficiencies in performance. Complainant had been placed on a performance improvement plan by a former supervisor in October 2018. S1 stated that she had a subsequent discussion with Complainant in November 2018, where she advised him that he was not meeting expectations regarding his productivity. S1 stated that she began having weekly discussions with Complainant in December 2018. She stated that Complainant indicated that he would work with his mentor, but he continued to not produce enough cases through January 2019. S1 noted that Complaint was placed on another Performance Achievement plan from February through March 2019, however, he did not demonstrate improvement in critical elements of Achieves Business Results and Demonstrates Job Knowledge. The record indicates that Complainant resigned, effective January 31, 2020. On appeal, Complainant submitted documents concerning two grievances that he filed against the Agency during the period in question. These documents indicate that he was placed on administrative leave from October 10, 2017 to April 2, 2018, while at the at the Creve Coeur, Missouri, Hearing Office, because of comments he made to a coworker on October 7, 2017, about having a firearm in the office. Complainant, as part of the investigation into the 2017 matter, was interviewed by the FPS Inspectors, and Special Agents from the Agency’s Office of the Inspector General. He consented to a polygraph exam conducted by a Federal Bureau of Investigation polygrapher, and voluntarily attended a “Direct Violence Risk Potential Psychological Evaluation” with an Agency contract psychologist. Complainant was subsequently reassigned to the St. Louis office where he was directed to go through security screening each time he entered the building.3 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 3 Complainant’s grievances are not the subject of this appeal; however, we noted the information contained in them because, given Complainant’s failure to provide an affidavit or brief, they provided information that clarified aspects of claim 3. 2021001515 4 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”). To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet his ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on age, and disability, we find that the Agency articulated legitimate, nondiscriminatory reasons for claims 1, 2, and Complainant’s proposed removal which is set forth in claim 3. We also find no persuasive evidence of pretext. As for Complainant’s hostile work environment claim, we find at the outset that a finding of a hostile work environment is precluded regarding claims 1, 2, and his proposed removal by our determination above that Complainant failed to establish that these actions were motivated by discriminatory animus. Moreover, we find no persuasive evidence that the remaining incidents set forth in claim 3 were motivated by discrimination. Furthermore, we find that Complainant has not shown that he was subjected to any improper medical examinations. We note that the Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with Agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (Jun. 16, 2017). 2021001515 5 Employees will not always agree with supervisory communications and actions, but absent discriminatory motives, these disagreements do not violate EEO law. Here, we find that the actions in this case did not involve such discriminatory motives; nor were they severe or pervasive enough to subject Complainant to unlawful harassment. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 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. 2021001515 6 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 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 8, 2021 Date