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

Equal Employment Opportunity Commission

Apr 27, 2022

Appeal No. 2021002765 (E.E.O.C. Apr. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marguerite L.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021002765 Hearing No. 450-2020-00302X Agency No. DAL-19-1149-SSA DECISION On April 12, 2021, 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 March 15, 2021 final decision concerning her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Social Insurance Specialist, GS-11, at the Agency’s Terrytown Louisiana Field Office. On November 26, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), disability (affiliation with a person with a disability), age, and reprisal for prior protected EEO activity when: 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. 2021002765 2 1. On August 7, 2019 Complainant called the Agency and requested leave without pay (LWOP). Management denied her request and placed her on absent without leave (AWOL). 2. On August 8, 2019 Complainant called the Agency and requested LWOP like she did the day prior. Management denied Complainant’s leave request and placed her on AWOL again. 3. On August 20, 2019 management conducted a Weingarten meeting. The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts. Complainant testified that she called in to work on August 7, 2019 and requested LWOP under the Family and Medical Leave Act (FMLA) because she did not have childcare for her son. Complainant states that first line supervisor (RMO1) told her that her leave request was denied, and that she had three options: (1) to come into the office and work, (2) use her annual leave, or (3) be placed on AWOL. Complainant opted to go into the office with her son. Complainant indicated that when she arrived at work, RMO1 yelled and her and said, “as the manager of this office, I’m telling you to go home!” Complainant reveals that RMO1’s tone and mannerism were condescending, and that she worked for one hour that day and left. Complainant called into work the next day on August 8, 2019 to request LWOP under FLMA again, and RMO1 told that her leave request was denied, and that she could come into work or be placed on AWOL. Complainant went to work with her son, and when they arrived RMO1 met her at the door and directed her to go home. Complainant testified that she had a Weingarten meeting with management on August 20, 2019 regarding the events that took place on August 7, 2019 and August 8, 2019. She believes the Weingarten meeting was nothing more than reprisal due to her naming RMO1 and RMO2 in her prior EEO complaints. Complainant stated RMO1 asked her discriminatory questions during the meeting regarding her son’s medical condition, and that she had given RMO1 medical documentation the day prior to the meeting describing her son’s medical condition so RMO1’s questions were discriminatory. Complainant’s son is a minor and he has Attention Deficit Hyperactivity Disorder (ADHD), asthma, anxiety, depression, Oppositional Defiant Disorder (ODD) and Tourette’s syndrome. RMO1 testified that Complainant called in the morning of August 7, 2019 requesting LWOP, even though her prior request to use LWOP for that day had been previously denied. RMO1 stated that Complainant had originally made the request in February 2019 but refused to give the reason for the request. RMO1 stated that he could not process Complainant’s leave request without the reason for her absence. RMO1 stated that he informed Complainant that she had other types of leave available, but Complainant responded that she was not going to use her leave and that she was not coming in so RMO1 charged her with AWOL. Complainant subsequently came into work with her son and began working at the front window with her son sitting with her. RMO1 stated that he asked to speak with Complainant in a private room, and Complainant, her son, and Union representative were present. RMO1 stated that he reminded Complainant that 2021002765 3 she could use the leave that she had available or be placed on AWOL, and Complainant “storm[ed] out the door and went back to the window to work” with her son. RMO1 stated that he approached Complainant again asked to speak to her, and this time he involved Complainant’s second line supervisor (RMO2) because Complainant was not following supervisory instructions and was in violation of Agency policy. RMO1 stated that Complainant left after about one hour and made no appropriate leave request, so he placed her on AWOL. RMO1 testified that Complainant called in on August 8, 2019 and requested LWOP like she did the day prior. Complainant’s request was denied, and she came into the office with her son again. RMO1 stated that he informed Complainant that she could not bring her son to work and Complainant again refused to use her available leave, therefore, she was charged AWOL for failure to report to work. RMO1 testified that a Weingarten meeting was conducted on August 20, 2019 due to Complainant’s failure to follow supervisory instructions, bringing her son to work, and blatant disregard to their previous conversations. RMO2 testified that Complainant was not charged with AWOL due to her sex, race, or disability caretaker status. On the contrary, Complainant was charged AWOL for failure to report to work and violating the Agency’s Personnel Policy Manual. The record includes a copy of the Agency’s Personnel Policy Manual, section 5.8 of the manual states: Employees who bring their children to the official duty station during regularly scheduled tours of duty must be in leave status at the time of the visit. This does not apply to employees who bring children to work on the SSA-sponsored. “Bring Tour Children to Work Day.” During the investigation, Complainant indicated that two similarly situated employees (E1 and E2) had brought their children/grandchildren to the worksite and they were not charged with AWOL. Complainant submitted affidavits from two witnesses to support her allegation. The witnesses describe that E1 introduced his daughter to RMO1 in December 2019, and E2 was accompanied by her grandchild on January 29, 2020. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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 her to discrimination as alleged. The instant appeal followed. 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. 2021002765 4 § 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”). Discrimination on the Basis of Race, Sex, and Retaliation Complainant raised a claim of discrimination on the basis of race, sex, and reprisal. This claim is properly analyzed under the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination. A complainant may do so by presenting facts which, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. 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). Once the agency has met its burden, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. 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. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated a legitimate, nondiscriminatory reason for its actions --specifically that Complainant violated section 5.8 of the Agency’s Personnel Policy Manual by bringing her son to work during her tour of duty without utilizing an appropriate leave status. During the investigation, Complainant admitted that she did not provide a reason for management to place her on LWOP because she feels that management “does not keep employees’ personal information confidential” and has a “tendency to share information with the entire office.” Complainant’s admission supports management’s rational for not granting her LWOP. Therefore, we find that she has failed to establish that management’s nondiscriminatory reason was pretextual. We note that on appeal Complainant argues that similarly situated employees have brought their children/grandchildren to the office. This argument is insufficient to establish 2021002765 5 pretext because there is no indication that the comparators asked for LWOP like Complainant or that their situation was otherwise identical to Complainants. Disability Claim In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies that its decisions were motivated by a complainant's known relationship with an person with a disability we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See He-man v. Queens Village Comm. for Mental Health for Jamaica City Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. MATA, 179 F.3d 929, 933-34 (D.C. Cir. 1999). Here, there is no evidence that RMO1 and RMO2 knew that Complainant’s son had a disability when she was charged with AWOL on August 7 and 8, 2019. Complainant stated that she had reservations with providing management with the reasons for her leave request on those dates because management “does not keep employees’ personal information confidential.” It was not until Complainant was charged with AWOL that she turned in paperwork related to her son’s condition. It is impossible for us to find that RMO1 and RMO2 were motivated by discriminatory animus on August 7 and 8, 2019, when they were unaware of her son’s condition. Furthermore, as discussed above, the Agency provided legitimate nondiscriminatory reasons which Complainant failed to rebut. ADEA Claim The Commission generally applies the McDonnell Douglas framework to prove discrimination in cases alleging harm by a federal government employer under the ADEA. See Spencer v. U.S. Postal Service., EEOC Appeal No. 0120042065 (Aug. 6, 2008) (applying McDonnell Douglas to ADEA claim); Carver v. Department of Justice, EEOC Appeal No. 07A30025 (Aug. 8, 2005) (same); Jones v. Bernanke (Federal Reserve System), 557 F.3d 670, 673 (D.C. Cir. 2009) (explaining in federal sector ADEA retaliation claim that "[w]hether brought under Title VII or the ADEA . . . claims based on circumstantial evidence . . . trigger the familiar burden-shifting framework of McDonnell Douglas"). In this case, Complainant listed E1 And E2 as comparators, but the record shows that Complainant and E1 were of the same protected age group of at least 40 under the ADEA. Regardless, even if Complainant established a prima facie case of age discrimination, her claim fails because, as already discussed above, she failed to rebut the Agency’s legitimate nondiscriminatory reasons for the disputed actions. 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. 2021002765 6 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. 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). 2021002765 7 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 April 27, 2022 Date