[Redacted], Charles L. Burgett, 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022000488 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charles L. Burgett,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2022000488 Hearing No. 560-2021-00222X Agency No. KC-21-0060-SSA DECISION On October 26, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 27, 2021 final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant seeking re- employment with the Agency at the Agency’s facility in Kansas City, Missouri. On November 16, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African), sex (male), and in reprisal for prior protected EEO activity when on October 20, 2020, Complainant learned that the tentative offer for the Contact Representative (Debtor Contact Representative) position advertised under Vacancy Announcement No. SK10844519DH was rescinded. 1 The Commission typically uses pseudonyms in lieu of a complainant's real name when publishing its appellate decisions. In this instance, however, Complainant requested that his real name be used. 2022000488 2 The pertinent record shows that Complainant was selected for the position of Debtor Contact Representative for which he had applied online under Vacancy Announcement No. SK10844519DH. The offer was contingent on his receiving a favorable suitability determination. The Employee and Labor Relations (ELR) Specialist determined that Complainant was unsuitable for federal employment. At the time he found him to be unsuitable, the named official did not know Complainant’s race or that he had prior EEO activity. The ELR Specialist averred he discerned Complainant was male from Complainant’s name. Another named official, the Human Resources Director (HRD), affirmed that she knew that Complainant had prior EEO activity, because she had received litigation hold notices in his prior cases in 2015 and in 2018. She averred she believed Complainant to be an African-American male. The ELR Specialist affirmed that he analyzed Complainant’s suitability using the factors identified in 5 C.F.R. Section 731.202. The ELR Specialist stated that his analysis revealed that Complainant had previously engaged in repeated, serious misconduct in his prior employment with the Agency. The ELR Specialist presented the results of his analysis to the HRD, who concurred with the analysis and then shared the decision with a Human Resources Specialist, so that he could notify Complainant of the rescission of the offer. On October 20, 2020, the Human Resources Specialist informed Complainant that the Agency rescinded the tentative offer because the suitability/security background screening results were unfavorable. The record includes a list showing the selections for the past two years. Of the four, two were Black, three were male and one engaged in prior EEO activity. With regard to his prior employment, Complainant alleged that at a meeting on November 14, 2016, he was informed that management was considering terminating Complainant’s employment if he did not increase his production by November 29, 2016, but management said nothing about any alleged misconduct. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that he was subjected to discrimination or reprisal as alleged. CONTENTIONS ON APPEAL On appeal, Complainant claims a “lowdown premeditated conspiracy is going on here” regarding the Agency’s rescission of the job offer. He also asserts that the final agency decision was predicated on an inadequate investigation and is inconsistent with the facts of the case. Complainant maintains that the Agency’s reasons are pretext because the named official failed to specify the alleged serious misconduct for which Complainant was accused. He disputed that he had misconduct issues, although Complainant acknowledged that he had prior performance issues. Accordingly, Complainant requests that the Commission reverse the final decision. 2022000488 3 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). As an initial matter, Complainant claims on appeal that the investigation was inadequate and not based on the facts in the record. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant’s complaint was incomplete or improper. We note that Complainant withdrew his hearing request, a process which would have afforded him the opportunity to conduct discovery and to cure alleged defects in the record. Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. Disparate Treatment A claim of disparate treatment is usually 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. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. We will assume arguendo that Complainant established a prima facie case of discrimination and reprisal when the tentative offer was rescinded. In this case, however, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant’s tentative job offer was contingent on a successful suitability determination. Consequently, Complainant was required to pass the suitability test to be appointed. He did not pass the suitability test and his tentative offer was rescinded. 2022000488 4 Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's managerial decisions. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. It is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer, 647 F.2d at 1048; see also Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005) (personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation). As Complainant withdrew his request a hearing, the Commission does not have the benefit of an Administrative Judge's final credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination or reprisal as alleged. Accordingly, we AFFIRM the Agency’s final decision. 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. 2022000488 5 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). 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. 2022000488 6 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 26, 2023 Date