0120172514
12-05-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bart M,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120172514
Agency No. DEN-17-0454-SSA
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 19, 2017, dismissing his complaint of unlawful 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Social Insurance Specialist (Claim Specialist) at the Agency's Field Office in Denver, Colorado.
On May 15, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), disability, age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when a series of events occurred from January to his termination in March 2017. Complainant provided a list of events including but not limited to his performance plan, expectations for everyone "all-hands-on-deck," assigned a mentor and then the mentor was changed by management, retaliatory email from his supervisor, denied reasonable accommodation, not provided a written correction plan, termination, and was set up to fail.
The Agency issued its decision on June 19, 2017. The Agency simplified Complainant's claims to the following:
1. Complainant was subjected to harassment based on age, disability, race, and/or retaliation, between November 2, 2016 and March 2017, related to performance decisions, training, working conditions, performance plan, and within grade increases.
2. Complainant was subjected to disparate treatment based on age, disability, race, and retaliation when, on March 29, 2017, he was terminated form his position as a Social Insurance Specialist during his probationary period.
The Agency dismissed the complaint as a whole pursuant to 29 C.F.R. � 1614.107(a)(1) for raising the same claims in a prior EEO complaint, namely Agency No. DEN-17-0383-SSA. The Agency noted that it had accepted this complaint on May 2, 2017. As such, the Agency dismissed the complaint as a whole.
Complainant appealed asserting that the claims alleged in Agency No. DEN-17-0383-SSA were similar to the claims asserted herein, but not identical. Complainant, through counsel, asserted that the instant complaint involved an incident where Complainant was treated differently from his peers who attended Title 16 training with him. Complainant claimed that the other classmates were provided with the same mentor. However, Complainant was assigned a different mentor after 90 days and his new mentor failed to review 66 of Complainant's completed cases. As such, Complainant argued that the two complaints were distinguishable and addressed separate claims. Therefore, Complainant asked the Commission to reverse the Agency's dismissal and remand the matter for further processing.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the Agency or Commission.
The record included a copy of the Agency's letter of acceptance in Agency No. DEN-17-0383-SSA. A review of the letter shows that the Agency accepted the following claims of discrimination for investigation:
a. Whether the Agency failed to provide Complainant a reasonable accommodation based on disability since November 2, 2016.
b. Whether Complainant was subjected to disparate treatment based on disability, age, reprisal, and race, when on March 29, 2017, he was terminated from his position as a Claims Specialist.
c. Whether Complainant was subjected to disparate treatment based on disability, age, reprisal, race, when on January 27, 2017, he was placed on a Performance Plan.
d. Whether Complainant was subjected to harassment based on disability, age, reprisal, race, since November 2, 2016, related to performance discussion, training, working conditions, and within grade increases.
Clearly, numerous issues listed in Complainant's formal complaint in Agency No. DEN-17-0454-SSA were explicitly included in his prior EEO complaint such as Complainant's claims of denial of reasonable accommodation, termination, and the Performance Plan.
In addition, Complainant specified on appeal that he was subjected to disparate treatment when the Agency changed his mentor who failed to provide him with proper training and thereby setting him up for failure. We find this claim is encompassed within claim (d) of Agency No. DEN-17-0383-SSA, specifically under "training" and "working conditions." During the investigation of Agency No. DEN-17-0383-SSA, Complainant will be asked to provide examples of how the Agency treated him differently with respect to these aspects of his employment which most definitely include the change in mentors and the lack of training assistance which was a result of the new mentor. Therefore, we find that the Agency's dismissal of the complaint at hand was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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.
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 5, 2017
__________________
Date
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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