Sheryl S.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 17, 2020

0120182285 (E.E.O.C. Jan. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sheryl S.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 0120182285 Agency No. CHI-17-0682 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 May 18, 2018, 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., 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 VACATES the Agency’s final decision, and REMANDS her complaint for further processing in accordance with the ORDER below. ISSUE PRESENTED Whether the Agency’s final decision should be vacated because the investigation was insufficient and does not allow the Commission to determine whether Complainant’s removal was the result of an unlawful discriminatory motive. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Reader Assistant, GS-5 at the Agency’s Region V facility in Columbus, Ohio. 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. 0120182285 2 On August 15, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (48) and reprisal for prior protected EEO activity when her two- year limited appointment as a Reader Assistant was terminated on May 17, 2017. Complainant was responsible for, inter alia, reading and assisting C1, an Agency employee who was blind. Complainant was hired on a time-limited appointment (2 years) with a service compensation date of March 30, 2003. The Agency extended the appointment six (6) times between 2003 and 2016; the last extension was on April 18, 2016. Complainant worked as a Reader Assistant for C1 for 14 years prior to her termination. Complainant’s first level supervisor was the Assistant Manager (RMO1). The District Manager (RMO2) served as Complainant’s second level supervisor. Complainant stated that management was aware of her age due to its accessibility to her personnel documents. She also recalled that RMO2, and she had discussions regarding her adult children, and RMO2 was present when she received a birthday card from all the staff. Complainant stated that, on May 3, 2017, she was notified that her employment with the Agency would be terminated, effective May 17, 2017. She stated that RMO2 was responsible for her termination. She further stated that RMO1 informed her that she was being terminated for telling a non-governmental employee that the Agency “had bed bugs,” and because C1 was not getting along with her and no longer wanted her as his Reader. Complainant stated that she received a notice informing her that the termination was based on her failure to follow Agency policy regarding treating other employees with courtesy and respect. The notice also indicated that management had had several prior discussions with Complainant on the “expectation of professional and courteous behavior towards co-workers.” Complainant further stated that RMO1 informed the EEO counselor that there were also problems with her work. Complainant asserted that she discussed the bed bug problem with a friend, but, according to Complainant, this was not a ground for dismissal. Complainant contended that she was a good employee who would do additional work. She stated that she received good performance evaluations, and a rating of “Successful Contribution” in all categories of her 2016 evaluation regarding interpersonal skills; specifically, participation in “demonstrating job knowledge and maintaining generally positive and productive working relationships within the office.” Complainant stated that her age was a factor in her termination because during the fourteen (14) years, she worked with the Agency, she was not allowed to apply for any internal jobs unless they were also open to the public. She stated that RMO2 treated younger employees more favorably than the older employees. She also stated that several employees were very disrespectful towards employees with disabilities, yet management took no action. RMO1 stated that Complainant’s two-year appointment with the Agency was terminated because she failed to communicate with C1 in a professional manner and that her services were no longer meeting RMO1’s needs. RMO1 further stated that she had received “numerous” complaints regarding Complainant’s conduct, work performance and work ethic. 0120182285 3 RMO1 stated that she had discussed these concerns with Complainant during the midterm evaluation. RMO1 specifically discussed with Complainant the “negative impact of communicating about assigned work through emails only, as opposed to reading the paperwork to C1.” She also discussed the need for Complainant to pay attention to her spelling and grammar in order to improve her writing skills. RMO1 denied that age was a factor in the decision to terminate Complainant. RMO1 noted that Complainant’s contract provided that she could be terminated if her services were not acceptable to C1 or the assigned component. RMO2 stated that C1 met with her and described his frustration with Complainant. He and Complainant had four to six outbursts between June 2015 through May 2017. An example included the statements concerning Complainant’s discussion of the bed bugs. Management spoke with both C1 and Complainant regarding a lack of professionalism in their communications. RMO2 testified that she decided that termination was appropriate since Complainant’s services were no longer acceptable to C1. RMO2 denied that age was a factor in her decision. 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 Equal Employment Opportunity Commission Administrative Judge. 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 her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant, in pertinent part, challenged the Agency’s assertion that C1 found her services unacceptable and supported her termination. Among other things, Complainant noted that: C1 filed an EEO complaint against the Agency alleging the denial of a reasonable accommodation with respect to the removal of Complainant as his Reader; and that C1, in a notarized statement, dated June 23, 2017, disputed RMO2’s assertion that he no longer wanted Complainant to be his Reader. Complainant noted that C1’s statement was provided to the EEO counselor but was not made part of the Report of Investigation. In response, the Agency, in pertinent part, argues that the Commission should not consider the evidence that Complainant seeks to introduce for the first time on appeal. Although the Agency never directly addressed Complainant’s assertion that C1 did not want her terminated and that her services were not acceptable, it reasserts RMO2’s testimony that “[C1] expressed complete dissatisfaction with [Complainant] and stated that “he no longer needed her services.” 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 0120182285 4 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”). At the outset, we disagree with the Agency’s position that C1’s notarized statement is new evidence being presented for the first time on appeal. In this regard, we note that the EEO counselor’s report references a statement from C1 that was listed as Attachment B. The record provided by the Agency, however, does not contain an Attachment B to the report. Moreover, in her affidavit, Complainant references the statement by C1 noting the contradiction between what he stated and what RMO2 claimed he stated. Because C1’s statement was, apparently, part of the EEO counselor’s report, we find that it is not new evidence and it will be considered. In his statement, C1 wrote that: I am making this statement to clarify that I did not ask District Manager [RMO2] to discharge [Complainant], my personal assistant/reader. In April 2017, I went to [RMO2’s] office to ask about the bed bug issue in our office. I asked if there were any live bed bugs found under my desk. I also asked what management had said about bed bugs around my desk to other employees because there appeared to be some miscommunication. [RMO2] stated that she had noticed some tension between [Complainant] and me. I said that, yes, there had been some tension. I said that I wanted to get things worked out. [RMO2] said that [Complainant] had her bi-annual review coming up and that she would take care of it. I assumed that she meant that she would try to mediate issues between [Complainant] and myself. We have worked together daily for 14 years at this office. I never expected [RMO2] to terminate [Complainant]. I did not say that I no longer wanted [Complainant] as my reader, as alleged by [RMO2]. I did not say that she was failing to perform her job satisfactory. As a blind employee, I relied on [Complainant] to help me do my job and her absence for the last month has caused serious problems for me. When I learned about [Complainant’s] termination, I spoke to [RMO2] and told her that I did not expect her to fire [Complainant]. I told her that I thought she would mediate and help resolve tensions. I have asked [RMO2] to reinstate [Complainant] as my reader/personal assistant. In the instant case, we find that the investigative file contains insufficient information upon which to determine whether Complainant’s removal was the result of an unlawful discriminatory motive. The requirement that an agency investigate complaints of discrimination is codified at 29 C.F.R. § 1614.108. This regulation requires an agency to develop an impartial and appropriate factual record upon which to make findings on the claim or claims raised in the complaint. Id. § 1614.108(a). “An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.” Id. 0120182285 5 The investigator is required to conduct a thorough investigation--identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome. EEOC Management Directive 110, p. 6-8 (Aug. 5, 2015). While this requirement does not compel the investigator to engage in irrelevant and superfluous inquiry, it does require that the investigator exhaust those sources of information likely to support the positions of complainant and the agency. Id. We cannot conclude that the Agency’s investigation into the present case met this requisite level of development. As discussed above, the Agency failed to interview C1 for the investigation. Notwithstanding the fact that, according to RMO2, C1’s concerns and preferences were the reason that Complainant’s employment was terminated. The fact that C1 provided a statement that contradicted RMO2’s articulated reasons for Complainant’s removal makes it even more essential that he should have been interviewed for the investigation. We find it highly implausible that the Agency was not aware that C1 gave a statement to the EEO counselor, and that the statement was attached to the EEO counselor’s report. The investigator did not indicate why C1 was not interviewed or why his statement was not made a part of the record. By not investigating evidence that directly contradicts management’s articulated reason for Complainant’s removal, we find that the investigator did not conduct a through investigation into this matter. CONCLUSION Accordingly, the Agency's final decision is VACATED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below. ORDER Within 60 days of the date this decision is issued, the Agency shall conduct and complete a supplemental investigation consistent with this decision and with the requirements of 29 C.F.R. § 1614.108(b) and EEO MD-110. The Agency shall obtain detailed affidavits and relevant documentary evidence. The supplemental investigation shall include, at a minimum, the following: a detailed investigative affidavit or other sworn/affirmed statement from C1 addressing the matters set forth in his June 23, 2017, notarized statement. Among other things, the EEO investigator shall ask this witness about the contradictions between his statement and the affidavits provided by RMO1 and, specifically, RMO2. If C1 is no longer available, an explanation for his unavailability shall be provided for the record. Complainant shall be provided an opportunity to review the evidence collected during the supplemental investigation, including the investigative affidavit of C1, and submit a new affidavit. Following the completion of the investigation, the Agency shall issue a new final decision on Complainant's complaint, with notice of appeal rights as provided in 29 C.F.R. § 1614.110(b). 0120182285 6 The Agency is further directed to submit a report of compliance, including a copy of the supplemental investigative report and a copy of the final decision, in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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. 0120182285 7 Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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. 0120182285 8 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 January 17, 2020 Date