Carrol L.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 17, 2019

2019000485 (E.E.O.C. Sep. 17, 2019)

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

Carrol L.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 2019000485

Agency No. SF170822SSA

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated August 3, 2018, concerning an equal
employment opportunity (EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Group Supervisor, GS-0105-13, at the
Agency’s Office of Hearings Operations in Moreno Valley, California.

On November 13, 2017, Complainant filed a formal EEO complaint. As summarized by the
Agency, Complainant’s complaint consisted of the following:

1. whether Complainant was subjected to disparate treatment based on race (Black)
and religion (Muslim) when, on July 17, 2017, Complainant was placed on a
performance assistance (“PA”) plan;

2. whether Complainant was subjected to disparate treatment based on race (Black)
and religion (Muslim) when on September 25, 2017, Complainant was placed on
an Opportunity to Perform Successfully (“OPS”) plan; and

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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3. whether Complainant was subjected to harassment (non-sexual) based on race
(Black) and religion (Muslim) from July 17, 2017 and ongoing, in terms of
placement on PA and OPS plans, criticism of his work performance, and an
inappropriate gift.2

After an investigation, the Agency provided Complainant with a copy of the report of
investigation (ROI) and notice of right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant did not respond.

On August 3, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The instant appeal followed. On appeal, Complainant argues, in general, that he disagrees with
management’s assessment of his work performance. Complainant further argues that
management improperly added subcomponents to each of his six critical performance elements,
routinely changed and rearranged his job duties and responsibilities, and failed to release relevant
documents supporting that the Agency afforded Complainant the opportunity to demonstrate
acceptable performance.

In response to Complainant’s appeal, the Agency argues that Complainant’s appeal should be
dismissed. The Agency states that claims 1 and 2 should be dismissed because Complainant
filed an appeal with the Merit Systems Protection Board (“MSPB”) on December 7, 2018,
claiming that the Agency’s decision to issue him a performance-based demotion, effective
November 25, 2018, was motivated in part by a discriminatory basis.3 The Agency reasons that
Complainant’s PA and OPS plans relate directly as the preliminary steps leading to
Complainant’s demotion, and therefore, should be dismissed pursuant to 29 C.F.R.
§ 1614.107(a)(5). The Agency also argues that claim 3 should be dismissed, pursuant to 29
C.F.R. § 1614.107(a)(1), for failure to state a claim.

ANALYSIS AND FINDINGS

Based on our review of the record, we find that Complainant’s complaints are not properly
before the Commission on appeal. A copy of the MSPB AJ’s decision,4 dated July 12, 2019,
indicates that the MSPB AJ has already adjudicated Complainant’s discrimination claims
involving the PA and OPS plans, finding they “afforded [Complainant] more than adequate

2 The “inappropriate gifts” refers to a presentation where a commemorative coin with President’s
Trump image was presented to Complainant and his colleagues.

3 Complainant raised race (African-American) and reprisal for prior protected EEO activity as
bases.

4 The MSPB AJ decision is docketed as No. SF-0432-19-0137-I-1.
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opportunity to improve his performance.” The MSPB AJ further found that the additional
expectations management added to Complainant’s six critical performance elements provided the
“specific direction” Complainant claimed he needed to perform successfully during the PA and
OPS plans. Consequently, the AJ determined that the Agency’s performance standards were
valid and were communicated to Complainant. The MSPB AJ reasoned that evidence supported
a finding that the Agency offered Complainant “adequate opportunity” to develop his skills
before being placed on the OPS plan and the Agency provided Complainant “adequate
opportunity” to improve his performance while on an OPS plan. Despite this, Complainant
failed to successfully perform in all six critical elements. For these reasons, the MSPB AJ
determined that there was no evidence to support that management’s initiation and
implementation of the OPS plan was pretext for discrimination based on Complainant’s race or
reprisal for prior protected EEO activity.

Regarding Complainant’s demotion, the MSPB AJ also found “no credible record evidence that
the deciding official was motivated by a discriminatory animus when he demoted
[Complainant].” Similarly, the MSPB AJ found no discriminatory animus when management
presented a commemorative President Trump coin to Complainant and his colleagues. The
MSPB AJ reasoned that

While [Complainant] may have personally been offended by the presentation of
the Trump commemorative coin based on his own views of the current political
and social climate, there is no credible record evidence to suggest that the Agency
regional office, which made the decision to give the coin to [Complainant] and his
colleagues in recognition for their work efforts, was motivated by race
discrimination against African-Americans in making this gesture, or that
[Complainant’s supervisor] was motivated by race discrimination when she
presented the coin to staff.

Based on our discussion above, we find that the MSPB AJ has adjudicated all matters
Complainant raised in the instant EEO complaint.

We note that Complainant’s demotion occurred after the Agency issued its final decision. Once
Complainant appealed his demotion to the MSPB, his complaint became mixed because it was a
complaint of employment discrimination filed with a federal agency, related to or stemming from
an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). However, the matters
Complainant raised in the instant complaint regarding Agency management’s decision to place
him on AP and OPS plans were preliminary steps in Agency management’s decision to demote
Complainant. As a result, the MSPB AJ analyzed Agency management’s issuance of the AP and
OPS plans as well as Complainant’s demotion.

We further note that the MSPB AJ made determinations in his decision for all the discrimination
claims included in the instant complaint.

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The Commission has jurisdiction over mixed case appeals on which the MSPB has issued a
decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et
seq. However, we note that in the instant appeal before us, Complainant is not appealing the
MSPB AJ’s July 12, 2019 decision.

Therefore, Complainant’s appeal in this matter is DISMISSED.

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).

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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

September 17, 2019
Date