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

Equal Employment Opportunity Commission

Dec 20, 2021

Appeal No. 2021004190 (E.E.O.C. Dec. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Susan B.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021004190 Hearing Nos. 410-2020-00503X, 410-2021-00234X Agency Nos. ATL-20-0123-SSA, ATL-20-0675-SSA DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 1, 2021 concerning her complaint of 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. BACKGROUND At the time of events giving rise to these complaints, Complainant worked as a Group Supervisor, GS-13, at the Agency’s Office of Hearing Operations in Fort Lauderdale, Florida. On February 21, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On September 30, 2019, management assigned Complainant an employee to performance manage; 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. 2021004190 2 2. On November 27, 2019, Complainant did not receive a rating of 5 in all areas of her Performance Assessment Communication Systems (PACS) appraisal; 3. From April 28, 2019 to present, the Agency subjected Complainant to non-sexual harassment (hostile work environment) in terms of performance appraisal; management not responding to harassment complaints; unfavorable references; bullying; working conditions; and assignment of duties; and 4. On July 1, 2019, Complainant was assigned an employee to performance manage. The Agency accepted claims 1-3 for investigation and dismissed claim 4 for untimely EEO Counselor contact. Then, on September 22, 2020, Complainant filed a second formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On May 21, 2020, management did not permit Complainant to reschedule her mid-year PACS and issues it with negative feedback; and 2. Beginning January 10, 2020 to present, the Agency subjected her to non-sexual harassment (hostile work environment) in terms of a negative midyear PACS appraisal, PACS scheduling, verbal counseling, denied promotions, written counseling, work conditions, work assignments, and time and attendance. The Agency accepted both complaints for investigation. 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 and the two formal complaints were consolidated by the AJ. On June 17, 2021, Complainant withdrew her complaints. Complainant’s counsel confirmed that Complainant was seeking to withdraw both of her complaints completely and that neither a hearing nor a final agency decision was requested. Consequently, on June 22, 2021, the AJ issued an Order of Dismissal applicable to both matters, which stated in full that “Notice is hereby given that the above-captioned case is DISMISSED pursuant to the enclosed withdrawal of her complaint.” Despite the Order of Dismissal, on July 1, 2021, the Agency issued a final order (FAD) fully implementing the AJ’s decision. However, the FAD also noted the AJ’s decision was “in favor of the Agency” and stated that “[i]t is the final order of SSA that Complainant was not discriminated against based on race, retaliation, harassment, as set forth in the EEOC AJ’s decision.” Complainant timely filed the instant appeal. On appeal, Complainant contends the Agency incorrectly stated in the FAD that the AJ found 2021004190 3 in favor of the Agency and that the AJ found the Agency did not discriminate against her. She contends the AJ’s decision states only that her case was dismissed pursuant to her withdrawal. Complainant asserts this is a deprivation of due process. She states that she received a final agency order on the merits of her claim despite her voluntary withdrawal and without the benefit of discovery or consideration of a full and fair record. She asserts that if the FAD purports to be a decision on the merits, then she was entitled to consideration of all relevant evidence and she should be entitled to present her case. The Agency filed a Motion to Dismiss Complainant’s appeal stating that because Complainant voluntarily withdrew her formal complaints of discrimination, the Commission lacks jurisdiction to hear this appeal. The Agency did state in a footnote that: …the agency incorrectly stated that the AJ’s order found that the agency did not subject Complainant to discrimination based on disability or retaliation (Attach. D, Final Decision at 1). The agency concedes that the AJ’s dismissal order in fact dismissed Complainant’s complaints on the above-noted procedural grounds and did not address the merits of Complainant’s discrimination claims. Notwithstanding the error in the agency’s final order indicating a merits-based dismissal instead of a dismissal based on procedural grounds, the agency properly adopted and implemented the AJ’s decision dismissing Complainant’s complaints… Agency Motion to Dismiss, p. 3, FN 2. ANALYSIS AND FINDINGS In past cases, the Commission has found that where a complainant knowingly and voluntarily withdraws her complaint, the Commission considers the matter to have been abandoned. See Lopez v. Dep't of Commerce, EEOC Appeal No. 0120092893 (Sep. 28, 2011) (citing Tellez v. Dep't of Transp., EEOC Request No. 05930805 (Feb. 25, 1994)). Here, Complainant has affirmed on appeal that she voluntarily withdrew her complaints. It is unclear why the Agency issued a final decision on a matter that had been withdrawn by Complainant and dismissed by the AJ, but in issuing the FAD on an abandoned matter, the Agency created a discrepancy in stating both: (1) that it was fully implementing the decision of the AJ and (2) that it was finding that Complainant was not discriminated against. However, we find that the record establishes that Complainant knowingly and voluntarily withdrew her complaint. To the extent, the Agency made a determination regarding the merits of the complaint, the Agency did so in error. Based on a thorough review of the record, the Commission MODIFIES the Agency's final order. The Commission AFFIRMS the portion of the order fully implementing the AJ’s decision to dismiss Complainant’s complaints in Agency Nos. ATL-20-0123-SSA and ATL-20- 2021004190 4 0675-SSA, but it VACATES the Agency’s finding on the merits of the complaints concluding no discrimination was established. 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 2021004190 5 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 December 20, 2021 Date