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

Equal Employment Opportunity Commission

Feb 14, 2022

Appeal No. 2021000494 (E.E.O.C. Feb. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jame T.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021000494 Agency No. ATL-20-0351-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 21, 2020 final decision concerning an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Customer Service Representative in Dalton, Georgia. On April 24, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of disability (Traumatic Brain Injury)2 and in reprisal for prior protected EEO activity. By letter dated April 30, 2020, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claims: 1. On January 3, 2020, Complainant was terminated from his position. 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. 2 For purposes of analysis only, we assume, without finding that Complainant is an individual with a disability. 2021000494 2 2. The Agency subjected Complainant to non-sexual harassment on January 30, 2020, by lying about Complainant on official documentation and accusing Complainant of being a terrorist.3 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ) regarding the instant matter (harassment claim). 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 unlawful discrimination as alleged. Specifically, the Agency found that Complainant failed to establish a prima facie case of harassment reasoning that Complainant failed to establish, by a preponderance of the evidence, that the Agency’s actions at issue were based on his protected classes. The instant appeal followed. On appeal, Complainant requests that we reverse the Agency’s final decision finding no discrimination. Complainant also asserts that his removal was due to discrimination and references prior personnel actions, such as the denial of a reasonable accommodation and denial of a hardship transfer.4 In response, the Agency requests that we affirm its final decision finding no discrimination. The Agency reiterates that Complainant failed to establish that he was subjected to unlawful harassment based on his protected classes. In addition, the Agency submits, on appeal, a copy of Complainant’s deposition regarding his removal claim before the MSPB. The Agency asserts that this deposition for the MSPB proceeding was taken after the conclusion of the EEO Investigation and thus is new evidence that OFO should consider. Moreover, the Agency asserts that the statement allegedly made by a human resources representative during a hearing regarding Complainant’s unemployment claim, would have occurred when Complainant was no longer an Agency employee, the statement was not sufficiently severe or pervasive to constitute harassment, and there is no evidence that the alleged statement was based on Complainant’s protected classes. 3 The Agency bifurcated the claims and processed the removal claim as a mixed case. The Agency issued a final decision finding no discrimination on the removal claim on September 17, 2020. The final decision provided Complainant appeal rights to the Merits Systems Protection Board (MSPB). Complainant appealed the removal claim to the MSPB. MSPB Docket No. AT- 0752-21-0004-I-1 (Jan. 26, 2021). 4 Commission records reflects that Complainant raised the issue of a denial of a reasonable accommodation and denial of his transfer request in a prior complaint. These matters were appealed to the Commission. On appeal, we found no discrimination regarding these claims. Complainant v. Social Security Administration, EEOC Appeal No. 2021002690 (Oct. 6, 2021). 2021000494 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 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”). Complainant alleges that he was subjected to harassment when a named manager (M1) lied about him in the Decision to Remove. The record contains a copy of the Decision to Remove issued to Complainant from M1 dated Janaury 30, 2020. Therein, M1 set forth that Complainant told a co-worker upon seeing gas cans in M1’s truck in the office parking lot, “he [M1] is really tempting me with those gas cans” and gestured as if the truck would explode. In addition, M1 set forth, in the Decision to Remove, that Complainant stated to a co-worker that he never wanted to see M1 or [a named supervisor’s] faces again unless it was in the obituary…” He further asserts, in his formal complaint, that an unnamed Human Resources representative made the following comment during a matter before the Department of Labor regarding his unemployment insurance claim: “the [Oklahoma] City bombing was 25 years ago today. Do you see why we take this seriously?” Report of Investigation (ROI) at 6. Complainant stated that he felt that Agency officials were treating him like a “terrorist.” Id. As an initial matter, we note that Complainant’s removal claim is not currently before us. As set forth above, the Agency bifurcated Complainant’s removal and harassment claims. Complainant appealed his termination claim to the MSPB and the MSPB sustained the removal. MSPB Docket No. AT-0752-21-0004-I-1 (Jan. 26, 2021). To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). 2021000494 4 Complainant failed establish a prima facie case of harassment by not establishing the Agency’s actions at issue were based on his protected classes. Regarding the statements set forth in the Decision to Remove, the record contains an affidavit from M1. Therein, M1 asserts that the Decision to Remove contained statements Complainant made against management staff. ROI at 78. The record also contains an affidavit from an Agency Operations Supervisor (S1). S1, in her affidavit, asserts that the comments in the removal notice were based on a statement from another employee. ROI at 63. S1 stated that a fact-finding was conducted and Complainant was subsequently issued a Notice of Proposed Removal. Id. The Agency submits, on appeal, a copy of Complainant’s deposition, dated November 16, 2020, taken in connection with his removal claim before the MSPB. The MSPB deposition is considered new evidence since it was obtained subsequent to conclusion of the EEO investigation and we will thus consider herein. Complainant acknowledged in his MSPB deposition that he made the statement pertaining to the gas cans. MSPB Dep. at 36. Regarding the statement in the Decision to Remove, that Complainant referenced the obituary with respect to specified management officials, Complainant stated “I don’t necessarily deny saying that. I don’t remember what I said.” MSPB. Dep. at 18. Based on the foregoing, we do not find that Complainant established that management referenced these statements in the Decision to Remove based on Complainant’s protected classes.5 5 The doctrine of res judicata provides that a final judgment on the merits of a complaint bars further claims by the same parties based on the same complaint or cause of action and issues relevant to that complaint, treating the judgment as the full measure of relief to be accorded between the same parties. Magallanes v. Dep’t of Justice, EEOC Request No. 05900176 (July 13, 1990). Under the doctrine of res judicata is the principle of collateral estoppel or issue preclusion. This doctrine recognizes that suits addressed to particular claims may present issues relevant to suits on other claims. Thus, issue preclusion bars re-litigation of issues actually adjudicated and necessary to the judgment of prior litigation between the parties. In the administrative process, this doctrine applies to claims which were fully litigated before the MSPB. Syndor v. Office of Personnel Management, EEOC Appeal No. 0120101050 (June 3, 2010). In the instant matter, the MSPB fully litigated Complainant’s harassment claim regarding the statements set forth in the Decision to Remove when it issued a decision on Complainant’s removal claim. In a detailed analysis, the MSPB AJ found that, “I find that the evidence is sufficient to establish that the Agency proved [Complainant] made the statements as described…I also find [Complainant’s] statements alone sufficient to sustain the charge as it is obviously improper for an employee to say he is being tempted by gas cans in his manager’s truck and not wanting to see his managers’ faces unless they were in obituaries.” MSPB Docket No. AT-0752-21-0004-I-1 (Jan. 26, 2021). Based on the foregoing, we find that the MSPB adjudicated and issued a determination on the merits of these matters (statement attributed to Complainant in the Decision to Remove), as it was necessary to the determination of Complainant’s removal claim. 2021000494 5 Moreover, to the extent, Complainant alleges that an unnamed human resources representative made a statement referencing the Oklahoma City bombings, during a meeting pertaining to his unemployment claim, the record is devoid of evidence that this alleged statement was based on Complainant’s protected classes rather than the statements at issue herein set forth in the Decision to Remove. Accordingly, 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. 2021000494 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 February 14, 2022 Date