Timika O.,1 Complainant,v.Andrew Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 22, 2019

0120180051 (E.E.O.C. Aug. 22, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Timika O.,1
Complainant,

v.

Andrew Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120180051

Hearing No. 430-2014-00368X

Agency Nos. ATL-13-0140-SSA, ATL-13-0812-SSA

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s August 25, 2017 final order
concerning her 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.
For the following reasons, the Commission AFFIRMS the Agency’s final order finding no
discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Claims Representative, GS-11, in Asheville, North Carolina.

On February 15, 2013, Complainant filed an EEO complaint, ATL-13-0140-SSA, alleging
discrimination based on age (over 40), race (White), sex (female), and disability 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.
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(1) In October 2012, she was told she was going to be placed on a Performance Assistance
plan effective December 3, 2012; and

(2) She received less mentoring, was assigned more work, and was treated differently in her
Performance Assistance plan than a coworker outside of her protected classes.

On December 10, 2013, Complainant filed an EEO complaint, ATL-13-0812-SSA, alleging
discrimination in reprisal for prior EEO activity when she was subjected to non-sexual
harassment in that:

(3) On August 26, 2013, she received a Proposal for Demotion; and

(4) On July 15, 2013, and continuing, she was required to continue working as if she was on
an Opportunity to Perform Successfully (OPS) plan by having to submit a production
sheet every day to her mentor although she was told she was no longer on an OPS.

After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant requested a hearing. On December 24, 2014, the Agency submitted a
motion for a decision without a hearing. Complainant filed her response on January 12, 2015.
On July 20, 2017, the AJ issued a decision by summary judgment in favor of the Agency.

The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove
discrimination as alleged. The instant appeal followed.

ANALYSIS AND FINDINGS

Regarding claim (3), we note that Complainant was subsequently demoted to her former position
as a Service Representative, GS-9 effective March 2, 2014. Complainant’s demotion thus
effectively merged with her prior proposal for demotion. On April 1, 2014, Complainant filed a
Merit Systems Protection Board (MSPB) appeal concerning her demotion alleging
discrimination based on race, sex, disability, and in reprisal for prior EEO activity. She later
withdrew claims of discrimination based on race and sex. On January 30, 2015, the MSPB
issued its Initial Decision reversing the Agency’s demotion action but finding no discrimination
based on disability and in reprisal for prior EEO activity. Upon the Agency’s petition for review,
the MSPB issued its July 28, 2015 final order reversing its prior Initial Decision concerning the
demotion claim. Therein, the MSPB upheld the Agency’s demotion action finding no
discrimination based on disability and in reprisal for prior EEO activity. Complainant did not
file an appeal to the Commission from the MSPB’s final order. We find that claim (3), the
proposed demotion, merged into the actual demotion which was adjudicated by the MSPB.

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Thus, we find that Complainant made an election to pursue this claim with the MSPB and can no
longer pursue the claim (apart from an appeal from the MSPB decision) through an EEO
complaint. Therefore, we find that claim 3 is barred by the doctrine of collateral estoppel and is
also properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(4).

We note that Complainant retired from the Agency on May 2, 2014 (not at issue in this appeal).

The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on
a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that
an administrative judge’s determination to issue a decision without a hearing, and the decision
itself, will both be reviewed de novo).

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that
the agency was motivated by discriminatory animus. Here, however, Complainant has failed to
establish such a dispute. Even construing any inferences raised by the undisputed facts in favor
of Complainant, a reasonable fact-finder could not find in Complainant’s favor.

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the
evidence did not establish that Complainant was discriminated against by the Agency as alleged
in claims (1), (2), and (4).

CONCLUSION

Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no
discrimination.
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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.
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 (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.
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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

August 22, 2019
Date