[Redacted], Dwight F., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022001310 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dwight F.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2022001310 Hearing No. 550-2020-00143X Agency No. SF-19-0717 DECISION On January 11, 2022, 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 December 3, 2021 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Legal Administrative Specialist Claims Examining Benefit Authorizer, GS-0901-09, at the Agency’s Western Program Service Center facility in Richmond, California. On June 4, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On March 28, 2019, Complainant received a Proposed 14-day Suspension; 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. 2022001310 2 2. On May 17, 2019, Complainant received a Decision to Suspend, effective May 20, 2019;2 and 3. Complainant was subjected to harassment. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on November 30, 2021. Specifically, the AJ found that the record showed that on December 7, 2018, Complainant and another Agency employee (Coworker: Caucasian, male) were involved in an altercation at the facility cafeteria when Complainant placed a food order ahead of Coworker. Despite the fact Complainant placed his order first, the cafeteria worker3 (Cafeteria Worker: race unspecified, male) gave Coworker his food ahead of Complainant. The AJ found that Complainant questioned both Cafeteria Worker and Coworker about why Coworker had received his order first. Coworker responded “I’m not in it” to which Complainant responded “[y]ou are already in it. You’re benefitting from it’ and asked to see Coworker’s employee badge, which Coworker refused to let him do. Complainant them called him an “asshole” and said that he was going to contact the Agency’s Civil Rights and Equal Opportunity Office, to which Coworker responded, “I don’t give a fuck what you are going to do.” Following the incident, Complainant was issued the proposed 14-day suspension by his supervisor (Supervisor: Asian, male) for conduct unbecoming a federal employee, and the proposed suspension was upheld by the Module Manager (Manager: Latino, female), who issued the final Decision to Suspend. The AJ found that the Agency articulated legitimate nondiscriminatory reasons for its actions and that Complainant failed to establish that the Agency’s articulated reasons were pretextual, and further found that any harassment was insufficiently severe to create a hostile work environment. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 2 We find that the proposed suspension merged with the suspension and that claims 1 and 2 are therefore the same claim. 3 The cafeteria worker was not a federal employee and was not called as a witness during the investigation. 2022001310 3 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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 failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory 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 2022001310 4 actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination. We next find that the Agency articulated a legitimate, non-discriminatory reason for its action in the form of the Decision to Suspend letter, which stated that the action was based on a single charge of Conduct Unbecoming a Federal Employee, specifically “[o]n December 7, 2018, at approximately 9:00 a.m., in an unprovoked incident, you questioned a co-worker about his food order and demanded to see his federal badge. You also followed him to the cashier and continued to verbally accost him until security intervened.” The Agency having articulated a legitimate non-discriminatory reason for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were a pretext for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. During the investigation, Complainant averred that the reasons he believed the action was discriminatory were because Supervisor issued the proposed suspension “after learning of the January 7, 2019, meeting that I had sought EEO counseling to oppose what I perceived was a discriminatory act against me.” Complainant further averred that: In addition, the inflammatory nature of the words in the Proposal to Suspend, and the prosecutorial tone of the questions in the interview with notes that removed all my references to EEO activity save one, demonstrated that the supervisors ascribed insignificance to my protected rights to a workplace free from racial discrimination and right to oppose perceived or actual racial discrimination. Moreover, I believe my race and gender are linked inextricably in this case, because the response to the December 7, 2018, incident would not have risen to the level of requiring an investigation if I were a White man or an African American female. With regard to the fact that the proposed notice was issued after Complainant sought EEO counseling, we find that is insufficient to establish pretext. The Commission has generally held that a complainant may establish a temporal nexus between their engagement in protected activity and an adverse employment action where the action occurred within a few months after such protected activity. See Whitmire v. U.S. Postal Service, EEOC Appeal No. 01A63337 (Sept. 28, 2006). In the instant case we note that Complainant’s January 7 EEO meeting occurred less than three months before Complainant received the notice of proposed suspension from Supervisor. We further note that Complainant states that the purpose of the January 7 meeting was to address the actions of the prior month in the cafeteria. As such, Complainant has not shown that the focus of the EEO meeting addressed any allegedly discriminatory action by Supervisor. In other words, Complainant has not shown that such counseling identified Supervisor, as opposed to Cafeteria Worker, as the discriminating party. 2022001310 5 And if Complainant’s EEO contact addressed Cafeteria Worker’s action instead of Supervisor’s, he has not shown why Supervisor would seek to retaliate against Complainant for his opposition to the discriminatory acts of a non-Federal employee. We note in this regard that complainant has not shown any connection between Supervisor and Cafeteria Worker and it is not clear from the record whether the two even knew each other. Complainant has thus not established a nexus between the Agency’s actions and his protected activity. If, on the other hand, Complainant’s January 7 EEO contact addressed some other allegedly discriminatory acts, but by Supervisor rather than Cafeteria Worker, prior to the issuance of the proposed suspension notice, Complainant has not identified such acts and thus again fails to establish a nexus between his EEO contact and the proposed suspension notice. With regard to Complainant’s belief that similarly situated coworkers outside of his protected bases, such as a hypothetical white man or African American female, would have been treated differently, we note that Complainant has not identified any such similarly situated coworkers who were treated differently. Nor has Complainant shown that Supervisor harbored discriminatory animus against Complainant’s race or sex. Given the above, we therefore find that Complainant has failed to establish that the Agency’s articulated reason for its action is a pretext, or that the Agency’s action was motivated by discriminatory animus or retaliatory motive. On appeal, Complainant argues that the AJ failed to adequately develop the record and failed to ensure that the Report of Investigation was complete. Specifically, Complainant argues that Cafeteria Worker and other witnesses, some of whom the Agency interviewed when making its decision to suspend Complainant, were not interviewed during the investigation into Complainant’s EEO complaint. We note, however, that AJs have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, issue sanctions or permit or compel the testimony of witnesses. See 29 C.F.R. § 1614. 109. Following a review of the record, we find that Complainant has not shown the AJ abused his discretion in this regard. While Complainant maintains some witnesses to the December 7 cafeteria incident were not interviewed, he has not indicated what their testimony, if admitted, would have been and how or why it would have materially affected the outcome. We note in this regard that we have long recognized that the party opposing summary judgment must do more than merely recite facts or rest on his pleadings to demonstrate that such a genuine dispute of material fact exists. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247. Accordingly, the party opposing summary judgment must set forth specific facts showing that there is a genuine issue for trial. Id. at 250. We have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). 2022001310 6 On appeal, Complainant has not presented affidavits from any other December 7 witnesses averring that events occurred significantly differently than as described by the Agency in the suspension notice. We note in this regard that Complainant himself admitted during the investigation that he challenged Coworker, asked to see his federal credentials, and called him an “asshole.” While Complainant argues that he felt he was merely challenging what he believed to be discriminatory behavior, as the Agency points out on appeal, the appropriate way for Complainant to have challenged such discriminatory behavior was to have gone through official channels rather than challenging a coworker and calling him derogatory names. Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes the 14-day suspension must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes the suspension is precluded based on our finding that Complainant failed to establish that the suspension was motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). With regard to the remaining actions, including the actions of Cafeteria Worker and Complainant’s treatment during management’s investigation into the events of that day, we find such actions to be insufficiently severe and/or pervasive to constitute harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination or reprisal occurred, and we AFFIRM the final order. 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. 2022001310 7 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. 2022001310 8 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