Agency.Download PDFEqual Employment Opportunity CommissionDec 19, 20192019000121 (E.E.O.C. Dec. 19, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Woodrow F.,1 Grievant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019000121 DECISION Grievant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from three separate Step 3 grievance decisions dated December 19, 2017, January 19, 2018, and April 11, 2018 (Grievances 1, 2 and 3, respectively), concerning his claims 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. (Grievance 1, 2 and 3), as well as 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. (Grievances 2 and 3). BACKGROUND At the time of events giving rise to Grievances 1, 2 and 3, Grievant was employed by the Agency as a Legal Assistant (Senior Case Technician), GS-0986-8, at the Office of Hearing Operations in Orland Park, Illinois. On October 5, 2017, November 14, 2017, and February 20, 2018, Grievant filed, respectively, Grievances 1 and 2 alleging that he was subjected to disparate treatment and harassment by the Agency based on: 1 This case has been randomly assigned a pseudonym which will replace Grievant’s name when the decision is published to non-parties and the Commission’s website. 2019000121 2 1. his sex (male) and reprisal for prior protected EEO activity (Title VII, Rehabilitation Act, ADEA) when it denied his request made on August 22, 2017, to resume telework; 2. the above bases when it denied his request made on October 25, 2017, to resume telework effective November 13, 2017; and on February 20, 2018, Grievant filed Grievance 3 alleging: 3. the Agency’s leave policy, as applied to him, of denying his request for court leave to attend the initial status hearing on February 16, 2018, for the employment discrimination civil action he filed against the Agency in the United States District Court for the Northern District of Illinois, constituted reprisal discrimination because it interfered with the exercise of his EEO rights. On October 15, 2015, Grievant was notified that because he consistently failed to meet his productivity performance standard, he was going on a Performance Assistance Plan on October 26, 2015, and while thereon his telework was suspended. See Report of Investigation for EEO complaint CHI-17-0289-SSA (hereinafter ROI), which was pending before an Administrative Judge (AJ) with the EEOC when Grievant filed the instant appeal, Ex. 14, at 52 – 54, Bates Nos. 554 – 556.2 Back then, Grievant was a Paralegal Specialist, GS-0950-12, in the above office. Because Grievant failed to complete his Performance Assistance Plan, which was extended, on January 29, 2016, he was notified that on February 1, 2016, he was going on an Opportunity to Perform Successfully Plan and was ineligible for telework. Id. at 56 – 58, 61, Bates Nos. 558 – 560, 61. Then, because Grievant continued not to meet his productivity standard, on December 9, 2016, the Agency proposed demoting him to Legal Assistant (Senior Case Technician), GS-0986- 8. Id. Ex. 1, at 1, 8, Bates Nos. 172, 179. The Agency sustained the proposed demotion, and Grievant was demoted effective January 29, 2017. In EEO complaint CHI-17-0289-SSA, Grievant alleged discrimination regarding some or all these matters. In response to Grievance 1 about the denial of Grievant’s first 2017 telework request, Agency management recounted that he received a performance appraisal rating of Level 1 – Not Successful in October 2016, after failing his Opportunity to Perform Successfully Plan. This appraisal was for Appraisal Year 2016, and is dated October 31, 2016 Id., Ex. 16, at 25, 27, Bates Nos. 783 - 784. 2 The Agency did not submit the ROI with the grievance files. It subsequently submitted the ROI for reasons that will be explained below. 2019000121 3 Management pointed to CBA3 Article 41, Section 3.G. which requires that employees maintain an acceptable level of performance to be eligible for telework. Citing CBA Article 21, Section 8.E4 which provides that a Not Successful rating for an employee who has been demoted or reassigned for performance-based reasons will continue in effect until completion of the employee's appraisal period for his current position (Senior Case Technician), Management explained that this did not occur until October 2017. Citing CBA Article 41, Section 10, management further explained that Grievant was not eligible to reapply for telework until one year after he was removed in October 2016 from the Telework Program – and then must wait for the first biyearly telework application cycle. Pointing to CBA Article 41, Section 5.B., Management advised Grievant that this was in February 2018. After receiving this explanation, Grievant again applied for telework, this time effective November 17, 2017, which was denied. Grievant then filed Grievance 2. Responding to Grievant’s argument that CBA Article 41, Section 5.C.3. requires management to consider non-emergency requests to telework made outside the annual cycle open periods of February and August (off-cycle), management stated the plain language is that it must only consider the request, which it carefully did, not grant it. In the Grievance 2 process, Grievant contended that he was disparately treated from Coworkers 1 and 2 (females). He wrote both were demoted from Paralegal Specialist to Senior Case Technician after receiving Not Successful performance appraisal ratings. They worked in Grievant’s office. Coworker 1 was demoted by April 2015, and Coworker 2 by April 2017.5 In the grievance process, Grievant contended that the same management officials who denied his telework requests allowed Coworker 1 to resume telework within six months of being demoted, and allowed Coworker 2 to resume telework within five months of being demoted, both off-cycle. Grievant referred to the same coworkers in Grievance 1, but did not identify them. In his response to Grievance 1, Grievant’s first line supervisor (S1) sometime after his demotion responded that while Grievant contended two female employees returned to telework 4 – 6 months after their demotions, the record did not establish that other employees were improperly allowed to telework. S1 (male) made the decision to deny Grievant’s second 2017 telework request. In the Step 3 decisions on Grievance 1 and 2, upper level management wrote that if Grievant’s contentions were correct, then the telework requests by the female employees should have been denied, but even if management improperly applied the CBA in the past, it must come into compliance. 3 In their grievance decisions, management relied on the National Agreement between the American Federation of Government Employees and the Agency (hereinafter referred to as collective bargaining agreement (CBA). 4 CBA Article 21, Section 8.E. is located in the ROI, Ex. 14, at 36, Bates No. 538. 5 We were able to discern this by organizational charts in the ROI. These charts ran from April – September 2015, and one was dated April 2017. 2019000121 4 Management denied Grievance 3 because its Personal Policy Manual provides that court leave is not appropriate when the employee is a party to the civil action in which the government is a party, and because CBA Article 31, Section 9.F. directs that an employee is entitled to court leave when he is summoned in his private capacity in a Court proceeding where the government is a party, but not when the employee is also a party thereto. Thereafter, Grievant filed the instant appeal from the Grievance 1, 2 and 3 Step 3 final decisions. On appeal, Grievant argues that the time limit to file an appeal from the Grievance 1 and 2 Step 3 decisions should be tolled because the Agency did not inform him of his right to appeal to the EEOC’s OFO. Regarding these grievances, Grievant argues that while the Agency enforced CBA and Personal Policy Manual provisions against him in denying his requests for telework, it did not do so for Coworkers 1 and 2, and this constitutes disparate treatment discrimination against him based on his sex and reprisal for his prior EEO activity. Regarding Grievance 3, Grievant argues that CBA and Personal Policy Manual language about eligibility for court leave interferes with the exercise of protected activity and undermines anti-discrimination law. Grievant writes that he did not have access to discovery in the grievance process, and requests a brief period of discovery. In opposition to Grievant’s appeal, the Agency argues that the Commission should dismiss his appeal on Grievances 1 and 2 because he filed it more than 30 days after he received each final decision thereon. It cites 29 C.F.R. § 1614.402. The Agency argues that Grievant cites no authority showing it is required to provide appeal rights to EEOC’s OFO in its final grievance decisions, and in any event, they referred to his appeal rights under CBA Chapters 24 and 25. Regarding these grievances, the Agency argues that management properly interpreted the CBA and its Personal Policy Manual, and this was the legitimate, nondiscriminatory reason for denying Grievant telework. Regarding Grievant’s claim of disparate treatment in the approval of telework, the Agency argues that if management improperly applied the CBA in the past, then it must come into compliance going forward. Regarding Grievance 3, the Agency argues that Grievant did not meet the substantive administrative requirements for court leave. Citing Comptroller General opinions and EEOC federal sector EEO caselaw, the Agency argues that it properly denied Grievant court leave. The Agency argues that appellate discovery by Grievant is not appropriate. ANALYSIS AND FINDINGS As an initial matter, we agree that appellate discovery by Grievant is not appropriate. Discovery is generally not available in the appellate process. Regarding timeliness, because the Agency did not notify Grievant of his right to file an appeal with EEOC in his Step 3 final grievance decisions, we deem his appeal timely under the doctrine of equitable tolling. 29 C.F.R. § 1614.604(c). To prevail on his disparate treatment claims, Grievant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2019000121 5 He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with for this claim, however, since the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Grievant must prove, by a preponderance of the evidence, that the Agency’s explanation was a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). The Agency articulated a legitimate, nondiscriminatory reason for denying Grievant’s two 2017 requests to resume teleworking, i.e., it did so to comply with the CBA and its telework policy. On appeal, Grievant does not argue about the accuracy of managements’ interpretation of CBA and Agency telework policy, rather he argues that they were selectively enforced against him because of his sex and reprisal for prior EEO activity as evidenced by Coworkers 1 and 2 being granted telework 4 – 6 months after they were demoted. We find, however, that Grievant has not proved the Agency’s explanation for denying his two 2017 telework requests are pretext. There is no documentation in the record showing that the same supervisor who denied Grievant’s telework requests granted Coworker 1 and 2’s telework requests after they were demoted. We note that Grievant’s two 2017 telework requests were denied by different supervisors. There is no documentation in the record that Coworker 1 and 2’s telework requests were granted 4 – 6 months after they were demoted. Even if Grievant’s contentions are correct, the record contains no information on the particular circumstances of Coworkers 1 and 2 beyond these two contentions. Given this lack of information, we find Grievant has not proved pretext. We understand that the record is sparse. But the grievance process does not contain the same requirements for development of the record as the EEO complaint process. We agree with the Agency that Grievant is not entitled to court leave, a federal benefit, because he did not meet the substantive administrative requirements to receive such leave. Grievant argues that denial of court leave to participate in his EEO civil action, even if the Agency does so in compliance with its policy, interferes with his exercise of EEO rights, and hence constitutes reprisal discrimination. As argued by the Agency, the Commission has ruled to the contrary by finding no reprisal discrimination in these circumstances. See Brown v. Social Security Administration, EEOC Appeal No. 0120073808 (Apr. 16, 2010). Because we find that none of the incidents in the grievances were discriminatory, we find Grievant was not harassed. Accordingly, the Commission affirms the Agency’s final decisions on Grievances 1, 2, and 3 finding no discrimination or reprisal. 6 6 In EEOC’s acknowledgment of Grievant’s appeal, we inadvertently indicated the “Agency Number†was CHI170289SSA, a reference to his equal employment opportunity (EEO) complaint. 2019000121 6 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. With his appeal, Grievant included the opposition brief the Agency submitted to the AJ against his motion to amend his EEO complaint with the Grievance 1 and 2 discriminations claims. The opposition contained the complaint number, which was picked up and included in the letter OFO sent acknowledging Grievant’s grievance appeal. On May 15, 2018, the AJ dismissed Grievant’s hearing request on EEO complaint CHI-17-0289- SSA because all the claims therein formed the basis of the employment discrimination civil action he filed in a United States District Court for the Northern District of Illinois and another reason, and also denied his motion to amend his EEO complaint. On November 19, 2018, the Agency issued a final Agency decision (FAD) dismissing the same EEO complaint for the reasons the AJ dismissed Grievant’s hearing request, with appeal rights to EEOC’s OFO. Thereafter, the Agency uploaded to FedSEP – the Commission’s electronic case filing system - the complaint file and report of investigation (ROI) on the above EEO complaint, and its argument “opposing†Grievant’s “appeal†purportedly made from the FAD. The Agency included in the complaint file OFO’s acknowledgement of Grievant’s appeal that inadvertently indicated the “Agency Number†was CHI170289SSA. We have no record of Grievant appealing the November 19, 2018 FAD, and none of his appellate filings reference the dismissal of his EEO complaint. Accordingly, we will not address the Agency’s dismissal of Grievant’s EEO complaint. 2019000121 7 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. 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 19, 2019 Date Copy with citationCopy as parenthetical citation