[Redacted], Ken E., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionJan 31, 2022Appeal No. 2021000164 (E.E.O.C. Jan. 31, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ken E.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021000164 Hearing No. 520-2017-00567X Agency No. NY-16-0949-SSA DECISION On September 25, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 26, 2020 final order concerning his 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND On October 4, 2015, Complainant was hired as a Hearing Office Systems Administrator (HOSA)/Computer Assistant, GS-9, Step 1, at the Agency’s Office of Disability Adjudication and Review (ODAR) in Queens, New York Hearing Office subject to a two-year trial period. On December 1, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African American), color (Black), disability,2 and in reprisal for prior 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. 2021000164 2 a. On September 15, 2016, he was terminated from his position of Hearing Office System Administrator during his trial period; and b. From May 2016 through September 15, 2016, Complainant was harassed with regard to working conditions, including training, time and attendance, and assignment of duties. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. Complainant responded opposing the motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ analyzed the subject claims under both a disparate treatment and a harassment analysis. The Agency issued a final action adopting the AJ’s decision. The instant appeal followed ANALYSIS AND FINDINGS 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). 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. 2 Complainant identified his disabilities as Post Traumatic Stress Disorder and right knee/right shoulder impairments. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2021000164 3 Disparate Treatment: Termination A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 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 the personnel action at issue, 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); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). At the time Complainant was employed by the Agency, the Queens Hearing Office (HO) did not have a permanent Hearing Officer Director (HOD). Complainant initially reported to the Chief Administrative Law Judge. On or about November 1, 2015, the new Hearing Office Director was selected as the HOD of the Queens HO and became Complainant’s first line supervisor. When Complainant began his position as HOSA, the Regional IT Specialist gave him a four day in-person one-on-one training on the Queens HO. The training detailed Complainant’s duties and showed him the routine issues that would frequently arise, as well as the critical items Complainant would need to be able to handle immediately. Complainant also attended a five-day training in Falls Church, Virginia, from May 15-May 20, 2016. After the training, and in accordance with Agency policy, Complainant was expected to submit accurate accounting information when he sought reimbursement of his expenses. After returning from Falls Church, Virginia, on May 25, 2016, Complainant sent the Administrative Assistant an email which stated the following: Travel expenses are as follows: 1. Transportation from home address to Departure airport: $45.00 (5.00) tip 2021000164 4 2. Transportation from Arrival airport to Hotel $48.00 (2.00) tip 3. Transportation from Hotel to Departure airport $43.00 (7.00) tip 4. Transportation from Arrival Airport to home address $45.00 (5.00) tip Complainant’s credit card statement showed that the taxi fare on May 15, 2016, from the airport to the hotel in Arlington, Virginia actually cost $27.84. Complainant’s credit card statement, as well as a May 20, 2016 receipt, showed that the taxi in New York City from the airport to his home actually cost $26.80. In addition, Complainant submitted a request for travel compensatory time in the form of three and a half hours of premium pay for the time spent traveling home from Falls Church, Virginia, from 4:30 p.m. to 8:00 p.m. On June 9, 2016, the HOD held a Weingarten meeting and asked Complainant about the taxi fares and premiums pay requests. Complainant’s union representative was present and had the opportunity ask questions at the meeting. During the meeting, Complainant stated that the taxis from his home to the airport, and from the airport to the hotel, each cost $50.00. He could not recall the amount of the taxi from the hotel to the airport on his return trip but stated that he told the Administrative Assistant it was $50 because he was under the impression that how much the price was. Following the June 9, 2016 meeting, Complainant changed his premium pay request to only seek premium pay from 4:30 p.m. to 6:30 p.m. On June 30, 2016, a second Weingarten meeting which addressed the May 25, 2016 email that Complainant sent to the Administrative Assistant, as well as certain disputed credit card charges. During the meeting, Complainant stated that at the time he sent the Administrative Assistant the May 25 email, he was just giving “estimates of the taxi fares. Which he described as “[a]n intelligent guess at the numbers.” Complainant and his union representative requested a third meeting with the HOD, which was held on July 4, 2019, to further address the credit card disputes. Thereafter, the HOD issued a Notice of Termination dated September 15, 2016 in which he stated that Complainant failed to follow Agency policy the way in which he handled accounting of expenses incurred while on official travel and his actions demonstrated actions unbecoming of a Federal employee. Here, we conclude that the AJ correctly determined that the HOD proffered legitimate, non- discriminatory reason for terminating Complainant during his probationary period based on his failure to follow Agency policies in handling the accounting of his official travel expenses. Complainant failed to prove, by a preponderance of the evidence, that this reason was a pretext designed to mask the true discriminatory and/or retaliatory motivation for the termination decision. 2021000164 5 Harassment/Hostile Work Environment: claim (b) To prove his overall harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his race, sex, disability or age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Complainant alleged that from May 2016 through September 15, 2016, he was harassed with regard to working conditions including training, time and attendance, and assignment of duties. The HOD, however, disputed Complainant’s allegations, and stated that during the relevant period, Complainant was provided “with, and completed, all due training and was assigned work and duties commensurate with his position description. Complainant was also assigned a mentor (Regional IT Specialist), whom he communicated with frequently.” Indeed, the AJ expressly noted, and the record so reflects, that Complainant’s assignments were within the scope of his position, he received training, and he was provided with resources. The AJ properly noted that Complainant’s “own workplace shortcomings” do no equate to discriminatory harassment. Complainant’s claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination or unlawful retaliation. 2021000164 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). 2021000164 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 January 31, 2022 Date Copy with citationCopy as parenthetical citation